BOOK I. But, 2. If the lake insensibly undermines a part of the opposite territory, destroys it, and renders it impossible to be known, by fixing itself there, and adding it to its bed, that part of the territory is lost to its former owner; it no longer exists; and the whole of the lake thus increased still belongs to the same state as before. 3. If some of the lands bordering on the lake are only overflowed at high water, this transient accident cannot produce any change in their dependence. The reason why the soil which the lake invades by little and little belongs to the owner of the lake and is lost to its former proprietor, is, because the proprietor has no other boundary than the lake, nor any other marks than its banks, to ascertain how far his possessions extend. If the water advances insensibly, he loses; if it retires in like manner, he gains: such must have been the intention of the nations who have respectively appropriated to themselves the lake and the adjacent lands:-it can scarcely be supposed that they had any other intention. But a territory overflowed for a time is not confounded with the rest of the lake: it can still be recognised; and the owner may still retain his right of property in it. Were it otherwise, a town overflowed by a lake would become subject to a different government during the inundation, and return to its former sovereign as soon as the waters were dried up. 4. For the same reasons, if the waters of the lake, penetrating by an opening into the neighbouring country, there form a bay, or new lake, joined to the first by a canal, this new body of water and the canal belong to the owner of the country in which they are formed. For the boundaries are easily ascertained: and we are not to presume an intention of relinquishing so considerable a tract of land in case of its happening to be invaded by the waters of an adjoining lake. It must be observed that we here treat the question as arising between two states: it is to be decided by other principles when it relates to proprietors who are members of the same state. In the latter case, it is not merely the bounds of the soil, but also its nature and use, that determine the possession of it. An individual who possesses a field on the borders of a lake, cannot enjoy it as a field when it is overflowed; and a person who has, for instance, the right of fishing in the lake, may exert his right in this new extent: if the [125] waters retire, the field is restored to the use of its former owner. If the lake penetrates by an opening into the low lands in its neighbourhood, and there forms a permanent inundation, this new lake belongs to the public, because all lakes belong to the public. 2276. Land formed on the banks of a lake. The same principles show, that if the lake insensibly forms an accession of land on its banks, either by retiring or in any other manner, this increase of land belongs to the country which it joins, when that country has no other boundary than the lake. It is the same thing as alluvion on the banks of the river. BOOK I. CHAP. XXII. dried up. But, if the lake happened to be suddenly dried up, either? 277. Bed totally or in a great part of it, the bed would remain in the of a lake possession of the sovereign of the lake; the nature of the soil, so easily known, sufficiently marking out the limits. The empire or jurisdiction over lakes and rivers is subject 2 278. Juto the same rules as the property of them, in all the cases which we have examined. Each state naturally possesses it over the whole or the part of which it possesses the domain. We have seen (§ 245) that the nation, or its sovereign, commands in all places in its possession. risdiction over lakes and rivers. CHAP. XXIII. OF THE SEA. (76) CHAP. XXIII. use. IN order to complete the exposition of the principles of the 3 279. TEJ law of nations with respect to the things a nation may pos- sea, and its sess, it remains to treat of the open sea. The use of the open sea consists in navigation, and in fishing; along its coasts it is moreover of use for the procuring of several things found near the shore, such as shell-fish, amber, pearls, &c., for the (76) As to the dominion of the main seas, and right to limit the passage thereon, and the claim of the English in the British seas and elsewhere, in general, see the authorities collected in 1 Chitty's Commercial Law, 88 to 108. With respect to the view taken by the English law of rights in and connected with the sea and sea-shore, the doctrine is, that the sea is the property of the king; and that so is the land beneath, except such part of that land as is capable of being usefully occupied without prejudice to navigation, and of which a subject has either had a grant from the king, or has so exclusively used it for so long a time as to confer on him a title by prescription. In the latter case, a presumption is raised that the king has either granted him an exclusive right to it, or has permitted him to have possession of it, and to employ his money and labour upon it, so as to confer upon him a title by occupation, the foundation of most of the rights to property in land. This is the law of England, and also of Jersey, and some other islands belonging to Great Britain. Benest v. Pipon, Knapp's Rep. 67; Blundell v. BOOK I. making of salt, and finally, for the establishment of places of CHAP. XXIII. retreat and security for vessels. sessed, and its domi ? 280. Whe- The open sea is not of such a nature as to admit the holding ther the sea possession of it, since no settlement can be formed on it, so can be pos- as to hinder others from passing. But a nation powerful at sea may forbid others to fish in it and to navigate it; declarnion appro- ing that she appropriates to herself the dominion over it, and that she will destroy the vessels that shall dare to appear in it without her permission. Let us sce whether she has a right to do this. priated. 281. No propriate to use of the open sea. It is manifest that the use of the open sea, which consists body has a in navigation and fishing, is innocent and inexhaustible; that right to ap- is to say-he who navigates or fishes in the open sea does no himself the injury to any one, and the sea, in these two respects, is sufficient for all mankind. Now, nature does not give to man a right of appropriating to himself things that may be innocently used, and that are inexhaustible, and sufficient for all. For, since those things, while common to all, are sufficient to supply the wants of each,-whoever should, to the exclusion of all other participants, attempt to render himself sole pro126]prietor of them, would unreasonably wrest the bounteous gifts of nature from the parties excluded. The earth no longer furnishing, without culture, the things necessary or useful to the human race, who were extremely multiplied, it became necessary to introduce the right of property, in order that each might apply himself with more success to the cultivation of what had fallen to his share, and multiply, by his labour, the necessaries and conveniences of life. It is for this reason the law of nature approves the rights of dominion and property, which put an end to the primitive manner of living in common. But this reason cannot apply to things which are in themselves inexhaustible; and, consequently, it cannot furnish any just grounds for seizing the exclusive possession of them. If the free and common use of a thing of this nature was prejudicial or dangerous to a nation, the care of their own safety would authorize them to reduce that thing under their own dominion, if possible, in order to restrict the use of it by such precautions as prudence might dictate to them. But this is not the case with the open sea, on which people may sail and fish without the least prejudice to any person whatsoever, and without putting any one in danger. No nation, therefore, has a right to take possession of the open. sea, or claim the sole use of it, to the exclusion of other nations. The kings of Portugal formerly arrogated to themselves the empire of the seas of Guinea and the East Indies;* but the other maritime powers gave themselves little trouble about such a pretension. The right of navigating and fishing in the open sea being * See Grotius's Mare Liberum, and Selden's Mare Clausum, lib. i. cap. xvii. BOOK I. CHAP. XXIII. then a right common to all men, the nation that attempts to exclude another from that advantage does her an injury, and furnishes her with sufficient grounds for commencing hostili- 282. The ties, since nature authorizes a nation to repel an injury-that nation that is, to make use of force against whoever would deprive her attempts to of her rights. exclude another, ? 283. It even does Nay, more, a nation, which, without a legitimate claim, does it an would arrogate to itself an exclusive right to the sea, and injury. support its pretensions by force, does an injury to all nations; it infringes their common right; and they are justifiable in an injury to forming a general combination against it, in order to repress all nations. such an attempt. Nations have the greatest interest in causing the law of nations, which is the basis of their tranquillity, to be universally respected. If any one openly tramples it under foot, they all may and ought to rise up against him; and, by uniting their forces to chastise the common enemy, they will discharge their duty towards themselves, and towards human society, of which they are members (Prelim. § 22). However, as every one is at liberty to renounce his right, a 284. It a nation may acquire exclusive rights of navigation and fish- may acquire ing, by treaties, in which other nations renounce in its favour an exclusive right by the rights they derive from nature. The latter are obliged treaties: to observe their treaties; and the nation they have favoured has a right to maintain by force the possession of its advantages. Thus, the house of Austria has renounced, in favour [ 127 ] of England and Holland, the right of sending vessels from the Netherlands to the East Indies. In Grotius, de Jure Belli et Pacis, lib. ii. cap. iii. § 15, may be found many instances of similar treaties. and long As the rights of navigation and of fishing, and other rights 2 285. but which may be exercised on the sea, belong to the class of not by prethose rights of mere ability (jura merce facultatis), which scription are imprescriptible (§ 95), they cannot be lost for want of use. use,(77) Consequently, although a nation should happen to have been, from time immemorial, in sole possession of the navigation or fishery in certain seas, it cannot, on this foundation, claim an exclusive right to those advantages. For, though others have not made use of their common right to navigation and fishery in those seas, it does not thence follow that they have had any intention to renounce it; and they are entitled to exert it whenever they think proper. (78) But it may happen that the non-usage of the right may ? 286. unassume the nature of a consent or tacit agreement, and thus less by virbecome a title in favour of one nation against another. When tue of a tacit a nation that is in possession of the navigation and fishery (77) See observations and authorities, 1 Chit. Com. L. 287, n. 4, 5. (78) As to the effect of twenty years' uninterrupted use, and what interrup tion not successfully litigated will pre- agreement. BOOK I. in certain tracts of sea claims an exclusive right to them, and CHAP. XXIII. forbids all participation on the part of other nations,-if the coasts may become a property. others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use. (79) 2287. The The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, &c. Now, in all these respects, its use is not inexhaustible wherefore, the nation, to whom the coasts belong, may appropriate to themselves, and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property? And though, where the catching of fish is the only object, the fishery appears less liable to be exhausted, yet, if a nation have on their coast a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous. gift of nature, as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive in case there be a sufficient abundance of fish to furnish the neighbouring nations? But if, so far from taking possession of it, the nation has once acknowledged the common right of other nations to come and fish there, it can no longer exclude them from it; it has left that fishery in its primitive freedom, at least with respect to those who have been accustomed to take advantage of it. The English not having originally taken exclusive possession of the herring fishery on their coasts, it is become common [128] to them with other nations. ? 288. An for appropriating the sea border ing on the A nation may appropriate to herself those things of which other reason the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts as far as they are able to protect their right. It is of considerable imcoasts. (80) portance to the safety and welfare of the state that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation. During the war between Spain and the United Provinces, James I., king of England, marked out along his coasts certain boundaries, within which he declared that he would not suffer any of the powers at war to pursue their enemies, nor even allow (79) See further, 1 Chit. Com. L. 94, n. 1; ib. 98, s. 1.-C. (80) See further, 1 Chit. Com. L. 92, n. 2; ib. 94, n. 1; ib. 95, n. 1; Puff. b. 3, c. 3, s. 6, p. 69.-C. |