CHAPTER II.

OF THE TERRITORIAL SEA.*

ART. I.

Of the Empire of territorial Seas.

§ 1. THE sea, as well as the land, ought to be

considered as consecrated to the wants, the conveniences, and enjoyments of man. In this point of view, it presents the same properties, and the same considerations that gave rise to the establishment of territorial sovereignty. All that is said of land, as to the principles and effects of domain and empire, is applicable, therefore, to territorial seas.

2. When, says Bynkershoek, (174) the face of the earth became changed by occupancy, and the rights

*La mer territoriale.

(174) Bynkershoek, de dominio maris, cap. 2. in princip. Sed qnemadmodum simplicissima sunt cunctarum rerum initia, occupatis terris, non aliud mare occupatum videri potest, quam quod terras alluebat. Oras quippe tantum legebant veteres, non ausim ulterius fragilem committere truci, pelago ratem. Igitur in mare littoribus proximum cum descenderent, animo sibi hoc habendi præcipuum, vel piscatationis, vel transvectionis, vel qua alia causa ejus dominium possessione quærebant.

The sea next the land belongs to its owner.-Nature of domain.

of domain were introduced, the sea, which bathed its shores, was not abandoned to its natural liberty. Human affairs, in their commencement, proceed with the greatest simplicity. In the first ages of the world, the sea adjacent to the coast, belonged to the first occupier of the main land, as well on account of its utility for fishing and transportation, as because it was considered as an appendage, or rather, an accession to it.

3. Domain extends to those things only which may be exhausted by use, and are easily occupied.(175) The productions of the sea are limited. The land does not yield the same fruits in every region, nor does the sea, in all parts of the world, afford the same riches. Coral, pearls, amber, tunnies, and whales, which constitute the richest class of marine productions, are found only, or, at least, in greater abundance, in the Red Sea, on the coasts of Sardinia, in the east, at Greenland, and the north.* Can it be

(175) Nihil enim vetat occupata principali re, etiam accessiones occupatas censeri. Puffendorf de objecto domin. lib. 4, cap. 5, § 1, 2, et 8. Hertius in nolis ad. n. 6.

*The enterprise of the Americans, has extended the whalefishery to the south. The daring spirit with which it is carried on by them, is thus described, by a British orator, in 1774: "Pass by the other parts, and look at the manner in which the people of New-England have, of late, carried on the whale

fishery. While we are following them among the tumbling "mountains of ice, and behold them penetrating into the deepest "frozen recesses of Hudson's bay, and Davis' straits; while we "are looking for them beneath the arctic circle, we hear that "they have pierced into the opposite region of polar cold-that

Property in whale, and pearl-fisheries.

doubted, that the rich pearls of Bahrem,(176) el Kalif, and Ceylon, may lawfully become the property

they are at the Antipodes, and engaged under the frozen ser

pent of the south. Falkland-island, which seemed too remote, "and too romantic an object, for the grasp of national ambition, " is but a stage and resting place, in the progress of their victo"rious industry; nor is the equinoctial heat more discouraging "to them, than the accumulated winter of both the poles. We "know that whilst some of them draw the line, and strike the "harpoon, on the coast of Africa, others run the longitude, and

pursue their gigantic game along the coast of Brazil. No sea, "but what is vexed by their fisheries. No climate that is not a "witness to their toils. Neither the perseverance of Holland,

nor the activity of France, nor the dexterous and firm sagacity "of English enterprise, ever carried this most perilous mode of "hardy industry, to the extent to which it has been pushed by "this recent people; a people who are still, as it were, but in "the gristle, and not hardened into the bone of manhood." Burke's Speech, for conciliation with the American colonies.—Thirty years of rapid advancement towards maturity, has not abated the vigor and hardihood of American enterprise; and, besides the extension of the whale-fishery, a new source of wealth and industry, has been discovered. Seals (Phoca) are taken in immense numbers, on the islands of the pacific ocean; their skins have become a most valuable article of commerce. The islands, at which they are principally caught, are Falkland-island, Juan Fernandez, Massafuero, southern Georgia, Tristan d'Acuna, St. Paul, and Amsterdam. A single ship has been known to carry 60,000 seal-skins to the Canton market, where they are exchanged for teas, silks, nankeens, and other productions of China. The oil also of the seal, as well as that of the sea-elephant, is excellent, and would be a valuable article; but the skins being the principal object of attention, the oil has been neglected......T.

(176) The island of Bahrem or Baharin, in the east, lies in the Persian gulph. The Portuguese, when they possessed Ormus and Moschuta, were masters of this island: it belongs, at present,

In certain respects, the sea may be appropriated.

of an individual? As the sea, in regard to certain productions, is not inexhaustible by use, and as the people, to whom those favoured spots belong, have it in their power to appropriate to themselves any productions within their reach, in the same manner as they have assumed the domain of the lands they inhabit, reason dictates, that the sea should be regarded, in that case, as susceptible of property; and this, without being repugnant to the principles of the universal law of nations, since it is a consequence only of the territorial domain.(177)

to the Sophi of Persia, who, by the aid of the English, wrested it from the Portuguese. The pearl-fishery of el Kalif, is found on the coast of Arabia Felix, opposite Bahrem. Ceylon, has also a pearl fishery, in the sea of Manar, a large town of this island. These pearls are held in the highest estimation, in the east, on account of their whiteness and brilliancy. Some of them, but very rarely, weigh four carats. Large pearls, of an irregular figure, are caught on the coast of Japan; but the Japanese, are not curious in their gems. They fish also for pearls, along the coast, in the gulph of Mexico, as well as at Cubagne, at five leagues distant from NewAndalusia, in the island of Marcherita, or the Marguerites, at the distance of a league from Cubagne, and at Comogate, near Terra Firma; they are found, also, in the river de la Hacha, called Hancherie, and at St. Martha, about 60 leagues from de la Hacha. Pearls may be obtained, but few in number, in the South sea. Scotland and Bavaria, have their pearls too, but none have yet been found, that bear a comparison with the oriental pearls.

(177) Grotius himself, one of the warmest defenders of the liberty of the sea, as will presently be seen, acknowledges this truth, in his work, de jure belli ac pacis, lib. 2, cap. 3. §. 8. Ad hoc exemplum videtur et mare occupari potuisse ab eo, qui terras, ad latus utrumque possideat etiamsi aut supra pateat ut sinus, aut supra et infra ut fretum, dummodo non ita magna sit pars maris, ut non cum terris comparata portio earum, videri possit.

Sovereigns have a right to forbid strangers entering their ports, &c.

4. Every nation may appropriate things, the use of which, if left free and common, would be greatly to its prejudice. This is another reason, why maritime powers may extend their domain along the seacoast, as far as it is possible, to defend their rights, as will be shewn in the sequel. It is essential to their security, and the welfare of their dominions, that an unlimited freedom of approach to their territories, should not be allowed to every one, especially, with ships of war, whose presence may prevent the access of commercial nations, and interrupt navigation.(178)

5. If we attend to what ancient writers have said, on this subject, as well as to the history of every age, we shall find, that the right of the sovereigns of the sea-coast, to interdict the ships of strangers from entering, or approaching, the harbours and roads, within their dominions, has been established without interruption. If suffered to come within their territory, it has been in consequence only, of a permission given, after a demand made for that purpose, or as a fa

(178) Paulus, in l. 14. tit. 10, lib. 47. Digest. de injuriis. Sane si maris proprium jus ad aliquem pertineat, uti possidetis interdictum ei competit, si prohibeatur jus suum exercere, quoniam ad privatam jam causam pertinet, non ad publicam hæc res, ut pote cum de jure fruendo agatur quod ex privata causa contingat, non ex publica; ad privatas enim causas accommodata interdicta sunt, non ad publicas.