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rests therefore with the sovereign on an estimate of public advantage to restrict the navigation and extend the terrene highway, by stopping back the water, and forming a causeway, an embankment, or a bridge.
634. In this country, such appropriation may be made by the legislature without, and by the Crown upon, an inquiry in a prescribed form, whether it will tend to the public good; and where a road has been permanently formed across an inlet of the shore, and enjoyed for a great length of time, it is to be presumed that it was formed on sufficient authority, and, if necessary, with the public assent. (Com. Dig. Chemin. A. 1. Fitzh. Nat. Brev. 515; the King v. Montague.) It is only a beneficial modification of the public right.
RIGHTS ON THE WATERS.
WE propose now to embark upon the waters in peace, and to endeavour to travel in safety, and to accommodate those we meet.
635. OPEN SEA.—All who have access to it have a right to use the open sea. The mariner of every nation is equally entitled to traverse and convey his merchandise across its wide expanse. There is no property in the billows; there is no ownership of the storm. Yet man has made the wave, the wind, and even the lightning, subservient to his convenience.
636. The use of the sea, then, in a sense, belongs to all nations, for their common enjoyment. The right to enjoy can be exercised only by individuals, and every one has an equal right. But the protection of the right is not entrusted to their single prowess.
637. The protection and regulation of the universal rights are confided to all maritime nations,—as a supreme court, which however is rarely convened.
638. An aggression on the rights of subjects of any nation must not be avenged, though it may be resisted and repelled, by those on whom it is made ; vindication belongs to the nation, the subjects of which are entitled to redress.
639. As the nations are the protectors of universal rights, so each nation is the protector of the rights of its own subjects; and the regulation of those rights,—in the open sea, by and in conformity with the law of nations; in its national waters, according to its domestic policy and municipal law.
640. As the sea is the highway of the world, every one is equally entitled to travel over it, and consequently without taxation or toll.
641. The ocean is the common area on which the ships and the merchants, the armaments and the commerce of all nations meet; the high-road on which they salute and travel together in amity, and associate against the robbers and dangers of the sea ; the arena on which hostile pavies encounter, and emulate the destructive storms ir hurling and scattering wide the thunderbolts of war. This vast concourse, bent on their different pursuits of science, pleasure, profit, and mischief, travelling in amity and good-fellowship; in competition, in rivalry, in arrogance, and the pride of power; in hostility, in hatred and revenge; hustled together by the currents, the winds, and the waves; rushing towards each other in the heedlessness of their fast career, in the darkness of 'the fog, in the gloom of night, or in their flight from the common danger or the common foe; this vast concourse requires for its regulation and welfare strict and stringent laws.
642. The ships of each nation are “floating portions of her territory," and amenable to her laws. Her merchant ships are her villages and marine bazaars, the representatives of her wealth ; her war-ships are her floating fortresses and citadels, the emblems of her pomp and power. Every man of their crews demands the protection, and is subject in all respects to the action, of her laws. They are regulated by the stern and irresistible behests of the municipal law in all their conduct towards each other, and in all their conduct, so far as it is by that law prescribed, towards others whom they may meet upon the sea, and there are constituted powers by which the offender may be imprisoned or enchained. There are constituted courts by which he may be tried, and there is an authority, irresistible and beyond appeal, by which the sentence may be enforced.
643. Whatever may be the law of nations, the mariner is bound to obey the ordinances and mandates of his own peculiar law, not only in relation to his fellow-subjects, but in relation to all his fellow-travellers on the sea, as well in what concerns international as in reference to his country's affairs. But when his own law is not express, and the letter of his prescribed duty is silent, he must obey the maritime law.
644. When the mandates of his sovereign are clear, he must accept them as the true version of international law, however inconsistent with his own opinion, or the doctrines of other states. While he so acts, his sovereign and his country are responsible for his conduct, and bound to obtain for him redress, or in some instances, at least, to compensate the loss which obedience may induce. And obedience may induce the capture and condemnation of his ship and cargo, under a construction of international law, with which his country does not accord. He cannot lawfully resist; he must appeal to his government for reclamation or redress. : 645. A law which reason alone proclaims, which there is no arbitrament but the doubtful arbitrament of arms to immediately determine, and no supreme or impartial tribunal to immediately enforce, ought to govern, and to a certain extent does, and as nations grow more wise and improve in
civilization will, govern the mixed and mingling multitudes .. which gather upon the sea.
· 646. As to the laws of the ocean in time of peace, there is no great discord among maritime states. They have one common interest,—the increase of their commerce and the safety of their ships. And their laws bave one common source, the Phænician laws, as exbibited perhaps with improvements in the laws of Rhodes, promulgated in the Roman code, and reiterated and amplified in the collections, decrees, judgments, and ordinances of Amalfi, Barcelona, Oleron, and Wisby, and enlarged, and corrected, and adapted to particular localities by experience, observation, and good common sense.
647. As to the municipal laws in time of peace, there is little occasion for conflict; with maritime law, any discrepancy can arise only from different views taken by different nations as to what is most expedient for the common weal. Their interest in the navigation of their own waters in time of peace almost as much demands the accordance of the people of other nations as the navigation of the open sea. Different rules for the ships of different nations are more dangerous than the most common rule universally observed, for obedience to discordant rules almost necessarily occasions, not simply conflict, but collision of their laws. It ought, therefore, to be assumed, in the absence of the most explicit declaration, that no nation prescribes for the conduct of even her own subjects rules at variance with the law of the sea.
648. Hence it follows that there is nearly a general accord among nations as to the maritime law in time of peace. When Mars and Bellona excite the nations to fury, we shall find that they more seriously disagree. .
649. The maritime law then governs the ocean, and, subject to the ordinations of municipal laws, every port and harbour of the world. Observing them, every ship and shallop has a right, with her wide canvas, ber mighty engines, her sweeps or her oars, as she likes and as she can, to ride the unbounded wave.
• 650. THE MARITIME TERRITORY of a nation is subject to its inunicipal laws, in the same manner as its terrene dominions. But the people of other nations have certain absolute and certain modified rights with reference to that territory, and also the adjacent land. They have an absolute right granted by nature, that the ports and harbours shall not be destroyed; they have an absolute right to fly to them, and to run to and land upon the shore to escape the perils of the sea.
651. FOREIGN SHIPS.— The private ships of every nation have a right to sail into the ports, harbours, and creeks of every other nation for the purpose of refuge in distress. The sovereign of the country is not at liberty to deny that asylum, far less to retract the stipulation in that respect usually contained in treaties between friendly Powers. . 652. They have a right to sail into the ports, harbours, and creeks open to and appointed for commerce, not only for the purpose of refuge, but also for necessary provisions, .water, and repairs.
653. They have also the right to sail into such places for the purposes of trade, of science, or even amusement.
654. The dominant nation has no right to levy any tax or duty for the mere passage over her waters.
655. The foreign vessel has not, however, any right to fish in or to take away any of the productions or contents of those waters ; except that she has a right to take fish for her immediate subsistence, and she has a right to supply herself with necessary water from the public streams, so far as it can be obtained without trespass on private rights. In fine, the whole navigable area of the national waters, with all its ports and harbours, is, under due regulations, subject to the right of peaceful navigation by all the nations of the world. Some entirely deny this right, some limit it to particular ports or places; but neither is this denial nor this limitation consonant with the law of nations.
656. If the European and American states are entitled to compel China and Japan to trade with them, China and