their armed vessels to stop and observe the ships that should BOOK I. enter or sail out of the ports.* These parts of the sea, thus CHAP. XXIII. subject to a nation, are comprehended in her territory; nor must any one navigate them without her consent. But, to vessels that are not liable to suspicion, she cannot, without a breach of duty, refuse permission to approach for harmless purposes, since it is a duty incumbent on every proprietor to allow to strangers a free passage, even by land, when it may be done without damage or danger. It is true that the state itself is sole judge of what is proper to be done in every particular case that occurs; and, if it judges amiss, it is to blame but the others are bound to submit. It is otherwise, however, in cases of necessity,-as, for instance, when a vessel is obliged to enter a road which belongs to you, in order to shelter herself from a tempest. In this case, the right of entering wherever we can, provided we cause no damage, or that we repair any damage done, is, as we shall show more at large, a remnant of the primitive freedom of which no man can be supposed to have divested himself; and the vessel may lawfully enter in spite of you, if you unjustly refuse her permission. It is not easy to determine to what distance a nation may ? 289. How extend its rights over the sea by which it is surrounded. Bo- far this posdinust pretends, that according to the common right of all session may extend. (81) maritime nations, the prince's dominion extends to the distance of thirty leagues from the coast. But this exact determination can only be founded on a general consent of nations, which it would be difficult to prove. Each state may, on this head, make what regulation it pleases so far as respects the transactions of the citizens with each other, or their concerns with the sovereign: but, between nation and nation, all that can reasonably be said is, that in general, the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it; since, on the one hand, she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she has need of it for some lawful end (§ 281), and, on the other, it would be a vain and ridiculous pretension to claim a [129] right which she were wholly unable to assert. The fleets of England have given room to her kings to claim the empire of the seas which surround that island, even as far as the opposite coasts. Selden relates a solemn act,§ by which it appears, that, in the time of Edward I., that empire was acknowledged by the greatest part of the maritime nations of Europe; and the republic of the United Provinces acknowledged it, in some * Selden's Mare Clausum, lib. ii. (81) See further, Puff. b. 4, c. 5, s. 9, pp. 167, 8; 1 Chit. Com. L. 99, n. 1; ib. 100, n. 1; ib. 101, n. 2; ib. 101, n. 4; ib. 287, n. 7; ib. 441, n. 5. In his Republic, book i. c. x. 207 BOOK I. measure, by the treaty of Breda, in 1667, at least so far as CHAP. XXIII. related to the honours of the flag. But solidly to establish a ? 290. Shores and ports. (83) right of such extent, it were necessary to prove very clearly the express or tacit consent of all the powers concerned. The French have never agreed to this pretension of England; and, in that very treaty of Breda just mentioned, Louis XIV. would not even suffer the channel to be called the English channel, or the British sea. The republic of Venice claims the empire of the Adriatic, and everybody knows the ceremony annually performed upon that account. In confirmation of this right we are referred to the examples of Uladislaus, king of Naples, of the emperor Frederic III., and of some of the kings of Hungary, who asked permission of the Venetians for their vessels to pass through that sea.* That the empire of the Adriatic belongs to the republic to a certain distance from her coasts, in the places of which she can keep possession, and of which the possession is important to her own safety, appears to me incontestable: but I doubt very much whether any power is at present disposed to acknowledge her sovereignty over the whole Adriatic sea. Such pretensions to empire are respected as long as the nation that makes them is able to assert them by force; but they vanish of course on the decline of her power. At present the whole space of the sea within cannon shot of the coast is considered as making a part of the territory; and, for that reason, a vessel taken under the cannon of a neutral fortress is not a lawful prize. (82) The shores of the sea incontestably belong to the nation that possesses the country of which they are a part; and they belong to the class of public things. If civilians have set them down as things common to all mankind (res communes), it is only in regard to their use; and we are not thence to conclude that they considered them as independent of the empire: the very contrary appears from a great number of laws. Ports and harbours are manifestly an appendage to and even a part of the country, and consequently are the property of the nation. Whatever is said of the land itself will equally apply to them, so far as respects the consequences of the domain and of the empire. 2291. Bays All we have said of the parts of the sea near the coast, may and straits. be said more particularly, and with much greater reason, of (84) roads, bays, and straits, as still more capable of being pos[130] sessed, and of greater importance to the safety of the country. But I speak of bays and straits of small extent, and not of *See Selden's Mare Clausum, lib. i. right to cut sea-weed on rocks situate cap. xvi. below low-water mark, but by express grant from the king, or uninterrupted presumption. Benest v. Pipon, Knapp's Rep. 67. (82) Post, b. 3, c. 7, 132, p. 344.-C. (83) See further 1 Chitty's Commercial Law, 100, n. 2. The sea-shore, below low-water mark, primâ facie belongs to the king and all his subjects, and no subject can claim an exclusive (84) See 1 Chitty's Commercial Law, 100, n. 3.-C. BOOK I those great tracts of sea to which these names are sometimes given, as Hudson's Bay and the Straits of Magellan, over CHAP. XXIII. which the empire cannot extend, and still less a right of property. A bay, whose entrance can be defended, may be possessed and rendered subject to the laws of the sovereign; and it is important that it should be so, since the country might be much more easily insulted in such a place, than on the coast that lies exposed to the winds and the impetuosity of the waves. (85) It must be remarked, with regard to straits, that, when ? 292. they serve for a communication between two seas, the naviga- Straits in tion of which is common to all, or several nations, the nation particular. which possesses the strait cannot refuse the others a passage through it, provided that passage be innocent and attended with no danger to herself. By refusing it without just reasons, she would deprive those nations of an advantage granted them by nature; and indeed, the right to such a passage is a remnant of the primitive liberty enjoyed by all mankind. Nothing but the care of his own safety can authorize the owner of the strait to make use of certain precautions, and to require certain formalities, commonly established by the custom of nations. He has a right to levy a moderate tax on the vessels that pass, partly on account of the inconvenience they give him, by obliging him to be on his guard-partly as a return for the safety he procures them by protecting them from their enemies, by keeping pirates at a distance, and by defraying the expense attendant on the support of light-houses, sea-marks, and other things necessary to the safety of mariners. Thus, the king of Denmark requires a custom at the straits of the Sound. Such right ought to be founded on the same reasons, and subject to the same rules, as the tolls established on land, or on a river. (See §§ 103 and 104.) It is necessary to mention the right to wrecks-a right which a 293. was the wretched offspring of barbarism, and which has almost Right to everywhere fortunately disappeared with its parent. Justice wrecks. (86) and humanity cannot allow of it, except in those cases only where the proprietors of the effects saved from a wreck cannot possibly be discovered. In such cases, those effects belong to the person who is the first to take possession of them, or to the sovereign, if the law reserves them for him. within the If a sea is entirely enclosed by the territories of a nation, 294. A and has no other communication with the ocean than by a sea enclosed channel of which that nation may take possession, it appears territories of that such a sea is no less capable of being occupied, and be- a nation. coming property, than the land; and it ought to follow the (85) See 1 Chitty's Commercial Law, in general modern cases, Ship Augusta, 101, n. 1.-C. (86) The right to wreck is not unfrequently the subject of litigation in the Municipal Courts of Great Britain; see 1 Hagg. Rep. 16; and The Bailiffs, &c., BOOK I. fate of the country that surrounds it. The Mediterranean, CHAP. XXIII. in former times, was absolutely enclosed within the territories of the Romans; and that people, by rendering themselves masters of the strait which joins it to the ocean, might subject the Mediterranean to their empire, and assume the dominion over it. They did not, by such procedure, injure the rights of other nations; a particular sea being manifestly designed [131] by nature for the use of the countries and nations that surround it. Besides, by barring the entrance of the Mediterranean against all suspected vessels, the Romans, by one single stroke, secured the immense extent of their coasts: and this reason was sufficient to authorize them to take possession of it. And, as it had absolutely no communication but with the states which belonged to them, they were at liberty to permit or prohibit the entrance into it, in the same manner as into any of their towns or provinces. 295. The ed by a power are within its When a nation takes possession of certain parts of the sea, parts of the it takes possession of the empire over them, as well as of the sea possess- domain, on the same principle which we advanced in treating of the land (§ 205). These parts of the sea are within the jurisdiction of the nation, and a part of its territory: the jurisdiction. sovereign commands there; he makes laws, and may punish (87) those who violate them; in a word, he has the same rights there as on land, and, in general, every right which the laws of the state allow him. * It is, however, true that the empire and the domain, or property, are not inseparable in their own nature, even in a sovereign state. As a nation may possess the domain or property of a tract of land or sea, without having the sovereignty of it, so it may likewise happen that she shall possess the sovereignty of a place, of which the property or the domain, with respect to use, belongs to some other nation. But it is always presumed, that, when a nation possesses the useful domain of any place whatsoever, she has also the higher domain and empire, or the sovereignty (§ 205). We cannot, however, from the possession of the empire, infer, with equal probability, a coexistent possession of the useful domain; for, a nation may have good reasons for claiming the empire over a country, and particularly over a tract of sea, without pretending to have any property in it, or any useful domain. The English have never claimed the property of all the seas over which they have claimed the empire. (88) (87) See further, 1 Chitty's Commercial Law, 95, n. 3; Grotius, b. 2, c. 3, s. 13, p. 166.-C. * See Book II. 2 83. (88) As to the British seas, and the claims of the English of empire over the seas in general, see Selden's Mare Clausum, b. 2, c. 1, p. 182, and other authorities collected Chitty's Com mercial Law, 101, 2, 3. As to the duty of the flag, or the obligation upon other nations to pay a particular mark of respect to British men-of-war, by striking their flag or lowering their topsail, formerly claimed, and so obnoxious to foreign shipping, see id. 101, 2; Molloy, b. 1, c. 5, ss. 11; and see Postlewaite's Dict. tit. Sea, British; This is all we have to say in this first book. A more mi- BOOK I. nute detail of the duties and rights of a nation, considered in CHAP. XXIII. herself, would lead us too far. Such detail must, as we have already observed, be sought for in particular treatises on the public and political law. We are very far from flattering ourselves that we have omitted no important article; this is a slight sketch of an immense picture: but an intelligent reader will without difficulty supply all our omissions by making a proper application of the general principles: we have taken the utmost care solidly to establish those principles, and to develop them with precision and perspicuity. Marten's L. Nat. 168, 9-172, 175; Com. tween ships, see Cours de Droit Public 211 |