Japan have a right to send their junks and to demand admission to trade in the European and American ports.

657. Yet, assuming the right, it must not be forgotten that, according to the law of nature and nations, there is a subordination of rights; and that the right of strangers is subordinate to the conflicting rights of the people of the land.

658. It is also a right which, on account of physical difficulties, cannot be at any time fully, and at some times cannot be to any extent, enjoyed without the acquiescence and even assistance of the people to whom the national waters belong. Moreover, it is a right which must of necessity fall under the regulation of the dominant nation; therefore it obviously is not an unconditional right, yet it may be more proper to describe it as passive, subject to suspension and control, than imperfect. It is more capable of definition than of being enforced.

659. The dominant nation is necessarily the sole judge, in the first instance at least, of the admission and limitation of the right; and against its determination the right of the foreigner is in the nature of an appeal to the principles of international law.

660. The dominant nation, having on reasonable grounds the right to prohibit the trade of all foreign nations, or of any one or more of them, and having the sole right of regulating that trade, and her self-interest being a powerful incentive to her reasonable exercise of that right, the case can hardly occur in which the law of nations would pronounce the prohibition wrong.

661. It must then be conceded to a nation that she has on reasonable grounds, perhaps we ought to say on grounds which she deems reasonable, a right to prohibit the access of foreign ships of all nations, or of a particular nation, to her coast, except in stress of weather, for necessary provisions or repair.

662. But such prohibition must be announced to the

prohibited nation; and until announced, the ships of that nation already on voyage have a right to enter in peaceable pursuits the forbidden ports, according to the pre-existing regulation, and on the pre-existing terms.

663. The prohibition, according to the law of nations, should not be arbitrary or dogmatically expressed; it should state the grounds on which it is founded; for although other states may not be entitled to examine them too critically, they have a right to see that the nation which resorts to so extreme a measure does comport herself consistently with the good conduct of the community of nations. Otherwise they, having the same latitude of judgment on that point, and not more than an equal responsibility, may be justified in treating such prohibition as sufficient cause for war.

664. THE MERCHANT-SHIP then, at least in the absence of such prohibition, has a right to visit every friendly state; but the exercise of that right must be subject to regulations, and all commerce is subject to revenue laws and a variety of conditions, and though no tax can be levied for mere transition over the waters, yet reasonable charges may be imposed by way of compensation for the benefits derived from the artificial accessories to the safety and convenience of navigation.

665. The making of such regulations is an act of sovereignty, and in the absence of treaty, any rules, or even laws, prescribed by the nation to which the foreigner belongs, are subordinate within the marine territory, whenever they conflict, to the municipal law of the country to which that territory belongs. The comity, by which nations make some concessions on this subject, does not even qualify the proposition, inasmuch as that comity is part of the law of the land which adopts it, though imported from a larger law.

666. REGULATION.-It is competent to the sovereign to regulate the use of the national navigable area, as well by foreigners as by his own subjects, for the safety of

the nation, the security of its customs and other revenues, the general protection and benefit of commerce, and the conduct and convenience of navigation, the collection of due compensations for lighthouses and other improvements and accommodations, the reward of pilots, and for all other public purposes; and for such purposes to prescribe certain limits as ports and convenient places within them, as the only places at which ships shall touch, or land their men or goods except for refuge from pirates or other enemies, or on account of stress of weather, want of water or provisions, or other necessary uncontrollable circumstances.

667. It may be stated as a general proposition, that as to navigation, the same rights, obligations, and liabilities, the same rules and regulations prevail within the national waters, the ambit of the presidial line, between foreign ships of the same nation, between foreign ships of different nations, and between foreign ships and those of the dominant nation. It is subject to exceptions, for nations sometimes deny foreigners privileges which they secure to their own marine, and sometimes peculiar privileges are secured by treaty to particular nations, sometimes by specific description, sometimes by a reference to those conferred on other particular states, and sometimes, especially when regard is had to future changes, by reference to those enjoyed, or which may be enjoyed, by the most favoured nation.

668. It is competent to a nation to grant in its waters to another even the privilege of search for contraband of commerce or revenue over its own vessels, but not over the vessels of another state. The concession, it has been said, may be extended even to search for contraband of war; but inasmuch as if granted it must be accorded equally to each belligerent, and each may not have equal power to exert it, we conceive that the grant of such concession is inconsistent with the duty of a neutral power.

669. The freedom of the national waters was recognized in our early Saxon laws. Let every merchant ship have

frith (freedom) that ecmes within port, though it be a hostle ship, if it be not driven and it fee to any frith-burgh and the men escape into the burgh; then let the men and what they bring with them have frith." (L. Ethelred ii. 2; Ancient Laws and Institutions of England. i. 285.) Again by Magna Charta, 9 Hen. III. e. 30, reiterating an earlier law, “All merchants, if they are not openly prohibited before, shall have their safe and sure conduct to depart out of England, to come into England, and to go through England, as well by land as by water, to buy and sell, without any manner of evil tolls, by the old and rightful customs, except in time of war."

670. The merchant and his ship and crew are subject entirely to the laws of the countries which they visit as to all criminal matters, and as to all civil questions which arise and are determined there.

671. This liability of course may be, and sometimes is, modified by treaty. Princes who have permitted foreign nations to make settlements in their country, have not unfrequently conceded to them the right of civil government within that settlement. Amasis gave such right to the Milesians who settled at Naucratis. The Portuguese and English have assumed it in all settlements in the East, and it was conceded to the English on their recent arrangements with the Chinese empire. The Turks in the sixteenth and seventeenth centuries conceded such rights to the French, the Venetians, and the English. We have already referred to similar grants to the Hanse and other towns.

672. It is moreover modified sometimes by the provisions and exceptions of, and out of the municipal laws. France seems to accord to the subjects of a foreign state on board a private ship in her waters, a considerable degree of exemption from French law in respect of offences and transactions confined to the crew, and neither affecting others nor the public peace, unless the aid of the local power is required. Whea. 154, 155.

673. As between foreign ships of different nations, and between foreign vessels and those of the dominant nation, the jurisdiction of the country in which they happen to be is absolute; otherwise their conduct might be governed by different laws.

674. But whether or not amenable to the law of the country which she visits, the crew of a ship is neither relieved from nor deprived of the obligations and protection of her own municipal law as to questions between themselves, in which a foreign country is not concerned. A crime committed on board an English ship in the waters of a foreign state, may be treated as committed within the British realm. Negro case.

675. In compound or confederated countries, the jurisdiction over the national waters is sometimes divided and appropriated to a greater or less extent to the several states. In America, the then constituted states on acquiring independence from the British crown, and the new states on their creation, assumed the same or the like sovereign right as the common law of England had vested in the Crown as to navigable rivers, fishing, etc. Each has separately the more immediate control and management of the navigable rivers flowing through or beside its provinces; but subject to the superior authority of Congress for the general purposes of the Union. Ang. 131, 159.

676. FOREIGN WAR-SHIPS.-The right of navigating the waters, and entering the ports and harbours of every nation, exists in favour of the ships of war as well as the merchant ships of foreign nations. There is some difference however in the manner in which the right is to be exercised and enjoyed by the two classes of vessels.

677. War-vessels represent the state and dignity of their sovereign, who is responsible for the conduct of their officers and all on board.

678. Whether they enter under treaty stipulation, express licence, or that implied from the absence of prohibition,

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