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THE OCEAN, THE RIVER,

AND

THE SHORE.

----

INTRODUCTION.

1. So far as the interests of man are concerned, the whole surface of this globe and its crust, to the extent to which it can be penetrated, are to be enjoyed according to the manner in which they can be best enjoyed. When this is ascertained, we shall have ascertained the law which governs their enjoyment. That may be properly called the natural law, or the law of nature. 2. Confining our consideration to the interests of mankind, the whole of the surface is divisible into two portions, which, however, are interspread among each other. 3. The first is land, the second is water. 4. The land may be most advantageously enjoyed by individuals, separately or in small associations, under the protection of the larger societies, called nations. With this portion we are concerned only so far as it is connected with the enjoyment of the other. 5. The land is the gift of nature, to be improved and enriched by the art of man. Its greatest value arises from building and cultivation. Little by little enclosures gain upon forests and wastes. More slowly the hoe, the plough, and the crops follow. The rest of the wide domain is hardly trespassed upon, except by stealth, or when the chief goes forth to hunt, to direct the pastime and divide the spoil. Cultivation gradually presses forward, and civilization begins to dawn; from time to time some arch-savage reclaims the fields for his forest, consecrates a desolation to his game, and licenses his sub-savages to make for themselves wildernesses as waste, though not as wide as his. Yet, again, the axe marches forward and the stag retires, cities swarm, villages teem with an active population, and the mountains feel the plough. 6. Gradually art and civilization possess, improve, and subdue the land, measuring and meting it out as the reward of industry, and the only sure mode of improvement; and thus establish the rights of property and the dominion of man, with ordinations for its regulation, which may be called the Terrené law. 7. Not so the water: Nature gave it to be free; to sport with the tempest and to thunder upon the shore; to gush from its fountains, enamelled with verdure and flowers; to flow through the valley, suffusing it with beauty and spreading fertility as it flows. Nature gave it for the habitation of inmates as free and as wild as its wave. Nature gave it for the use of man; but limited his dominion and his right to actual enjoyment and use. Nature has given him some, but little, power of possession or dominion over it. Man may vary the lines of its smaller features. He can well up the little springs, he can embank and sometimes alter the direction of the tiny streams, he can raise a mole at the side of the river, and even thrust it, but not far, amid the refractory breakers. Water will impose its own law, man can no more resist its mandates than he can repel its waves; he can check, and does check, each a little; and he strives, but strives in vain, to subjugate the margin and the ordinances of the sea. Water flows and will flow, and its inmates will be free. Man detains a little in a pond and triumphantly says, “This at least is mine.” But even that vanishes in vapour or steals away to the stream. To restore his petty property he must supplicate the fountain or the rain. He plants on the coast a bed of oysters, and gathers together and tries to domesticate their spat. The villain mollusks attach themselves to the soil. He says, “I can measure them by the yard, I can mete them out by the bushel, surely these are mine!” But behold Leviathan, “will he make supplications unto thee? will he flatter thee? will he make a covenant with thee ? wilt thou take him for a servant for ever?” Wilt thou imprison the royal salmon cased in glowing steel, the gold-suffused vermilion-spotted trout, the graceful grayling in his silvery sheath P they will suspect thy stratagem and struggle to evade thy skill; though captured they are unsubdued, they will keep no parol with thee; check their freedom, restrict their wanderings, their gorgeous vestments fade, they pine, they die, they cannot live as slaves. 8. Man may use the ocean and the stream: he may spread wide the canvas, and capture the habitants of the waters: but he may imprison neither the wave nor the wanderer within it. 9. The water is susceptible of enjoyment, and may, having regard to the interests of mankind, be enjoyed most advantageously in four methods:—(1) by all men, which gives the general right; (2) by all the people of a particular country, which is the foundation of the national or public right; (3) by such of the people of a nation as have the right to approach it, which confers the riparian right; and (4) by the persons on or under whose land it lies, which springs from the right of property, and may be designated the territorial right. But the less extensive of those rights do not exclude the more extensive, so far as the more extensive can be consistently enjoyed. The limits between the land and the water are not unalterably fixed. Portions of land are periodically covered and left dry, sometimes to a greater, sometimes to a less extent, exhibiting expanses more or less susceptible of the co-existence or alternation of terrene and aquatic rights, in a due subordination to be determined by the supreme law, utility to man. 10. Water has the power of diminishing and of adding to the quantity of the land. Man has also, to some extent, the like power. So that what was subject to the terrene may become subject to the aquatic, and what was subject to the aquatic may become subject to the terrene rights. 11. Utility determines where and when the aquatic and where and when the terrene rights shall prevail, and where either shall have exclusive or paramount sway; the principal conflict is on the frontier. 12. Their participation and the regulation of their participation in the general right, and the extent of their respective frontiers, must be determined by the actual or assumed agreement of nations, their treaties or the law of nations. 13. This external law, in an imperfect mode, regulates the relations of societies in contact with each other. Their agreement or assumed agreement provides for the enjoyment by each of its own acquisitions, without the interference of any other, with the measure or method of their subdivision. 14. The internal law provides, so far as it can, for the distribution and enjoyment of its possessions and acquisitions among and by the members of each community. 15. The external and internal law must proceed on the same principles. 16. To ascertain these principles we must again present to the mind the whole expanse and magnitude of the waters, the oceans, the seas, the lakes, with all their ramifications, their tributary rivers and affluent streams; the ponds, the diffuse and stagnant water, the pools, the subterranean fountains, and the descending rain. 17. We must ascertain the purposes to which they are applicable, and apportion them according to their applicabi

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