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public right; they cannot be so exercised as to render the water deleterious, or the channel mischievous to others, or less passable by migratory fish; and their rights among themselves are limited to the transient stream.
61. THE PROPRIETARY WATERS, or, rather, the unlimited use of them, belong to the owners of the land in which they lie.
62. THE PUBLIC RIGHT is to the water and for proper purposes in the subjacent soil. There may, however, obviously be benefits derived from the soil, susceptible of enjoyment by individuals, without prejudice or with little prejudice to the public rights.
63. For the purposes of protection and regulation, the public rights are vested in the Sovereign that they may be enjoyed by all the subjects of the realm. It is for the Sovereign to protect and vindicate them for the benefit alike of himself and his subjects ; they are not his, he cannot alienate them. He has the dominion, but not the ownership, of the navigable rivers and the circumjacent sea. They are to be enjoyed by the individuals of the country free as the air which blows over them, or the highway on which they tread. (Schultz, Bracton, I. xii. 6; Blundell v. Catterall.) (Best.)
64. DISTRIBUTION OF THE SUBJECT.-Having considered the division of the area of the waters and subjacent soil, and the rights which may be enjoyed in each, it appears to be more convenient to exhibit the several subjects of those rights in a connected view, than to class them under heads descriptive of the places in which they may be exercised.
We shall therefore proceed to deal with the subject according to the following scheme :
“Heaven speed the canvas gallantly unfurled
To furnish and accommodate a world :
65. We propose to treat this interesting subject as it affects the use of the waters, and the incidents to that use ; and shall deal with the questions of peace and war, of merchandise and commercial action, of ports and other collateral subjects, only in so much as they affect the sailing upon the sea.
66. We shall first present to the reader a historical sketch of the progress of navigation, its machinery, and its laws, and then divide the treatise into navigation—(so far as we conveniently can, regarding its distribution into the open sea and national waters), (1) in peace,—(2) in war.
67. The sailing and punting about in streams not navi. gable from the ocean, or from such lakes as may be considered departments of it, may be enjoyed in the exercise of riparian or private rights, but do not fall within the proper meaning of the word navigation.
68. In treating of navigation in the open sea, and in the national waters, we shall have to consider not only the international laws by which the reciprocal conduct of the subjects of different states is regulated during the halcyon period of peace, but also during the storms and peril of war, as well as the observances prescribed by the municipal laws, especially of this country, for the conduct of its subjects towards its own government and towards each other. HISTORICAL SKETCH OF NAVIGATION.
69. States and cities are created, improved, enriched, and civilized by manufactures and commerce.
70. War and conquest are supposed to ennoble, but tend only to alter and destroy.
71. The history of commerce is far too extensive to admit even the lightest sketch in the pages of this book. The only portions of it which we can properly present to the reader's attention are the incidental exhibition of its wealth, and that only so far as it is connected with navigation.
72. Even the laws of commerce are beyond our subject, except such of them as relate to the reciprocal conduct of mariners on the great highway of the waters.
73. The only other subjects incident to this sketch are piracy and the slave-trade, of which a history would require volumes, and to which we refer only as among the dangers which the mariner encounters on the sea.
74. The delineation and progress of navigation will alone be treated in this sketch. The notices which it is convenient to take of the history of piracy will be partly exhibited with the law on that subject, and, from its affinity, included in the law of maritime war.
75. Commerce does not extend itself like conquest, in the pomp of its armaments and the clatter of arms. It is not commemorated in the lays of the poet or the songs of the bard. The historian does not record its tranquil events. It proceeds unobserved, it glides from isle to isle, and sails along the coast; it creeps round promontory after promontory, and plants its civilizing factory from bay to bay. Its lays down its rude sea-chart, and corrects it by voyage after voyage. It speculates on the distance from point to point, and from time to time, when the weather is calm and the nights are clear, it adventures on a bolder reach, and dares across the solitary surface of the unbounded sea. So travelled the merchants of the Syrian colonists from their Spanish settlements to the British coasts. So, 2000 years afterwards, the hardy seamen of the Orkneys put forth for Iceland without compass, without chart, guided by speculation and the polestar, and the flight of birds. At length the mystery of the magnet revealed itself, and stamped its index on the card.
76. THE ANTIQUITY of nations beyond the period of written history can be ascertained only from the state of their arts, institutions, and population when they became first known, with the explanation afforded by such of their monuments as have remained and been recorded in after times.
77. So long as all history was mythically circumscribed within a period of 2400 years before the Christian era and the progeny of a single family, it was necessary to restrict the dates, and reject every inconsistent myth. But history, as geology, has burst those narrow bounds. It is no longer possible to dispute the co-existence, and continuous existence as populous countries, of China, India, and Egypt, from a period long anterior to that date. They are not the only nations which produce irrefragable title to an ancient name. The region of Mesopotamia teeming with people, and the manufactures and commerce of Tyre authenticate the antiquity of nations in those regions beyond the prescribed term.
78. Why are we to believe the Achæan nation had no capital, and the Etruscan no existence, beyond a limit inconsistent with the arts, the monuments, the commerce, and the scattered notices of these realms ?
79. Unroll the map 2800 years before the Christian era, and behold, in the extreme east, northward, China, a vast population labouring on its canals and enormous artificial river-banks; far to the south, India, with its fields of cotton and innumerable looms; in the far west, Egypt, amid her stupendous pyramids and pompous palaces, seated on mounds elevated by the industry of the myriads who watch the rise and the subsidence of the Nile ; where the shore curves away from the mouths of that river eastward, Phænician merchants and mariners are unloading the caravans, and preparing their vessels for the sea.
80. In the midst of the map, observe Babylon on both sides of a mighty stream, and further to the east the firetemples of ancient Balk.
81. There are indistinct traces, in the ocean beyond China, of the islands of Japan. There are phantoms in the far West, beyond where the Mediterranean is almost embraced by two capes. There are dim tracks, as of vessels on the waters, which stretch to remotest Thule. In the north-west of Italy we can almost read the word Etruria. In the Corinthian Gulf and the Eastern Euxine names are coming into view.
82. Except where stood Babel and Balk, and except where temples are rising, and around them caravansaries and buildings to receive the annual or more frequent fairs, from China to Egypt, from India to the Northern Sea, all are nomades—Tartars, Arabs, Scythians, or Celts; all ready to carry forward, in their periodical wanderings, what they might acquire by rapine or traffic to the temples on their several frontiers. The “camels without number” of the Midianites were not bred only to the milk-pail, or to furnish felt for the sable tents. The ships of the desert were employed before the ships of the sea. There appear tracks of the caravans like network over this vast area, but the broadest lines are from east to west, with a few ramifications as they proceed to the Syrian harbours, or further southward across the deserts to the Nile.
83. OF TRE ANTIQUITY OF ORIENTAL COMMERCE we can