ascertain the nationality and the identity of the offend

ing ship.'

'The warning may be by hailing. See Halleck, p. 610, § 15. Ortolan, Régles Int. et Dipl. de la Mer, vol. 1, p. 253.

3 Halleck, p. 606, § 10.

Salutes.

67. An armed ship entering a fortified port or roadstead of a foreign nation must salute it, and must be saluted in return.' But ships of small armament may omit the salute, communicating the reasons to the authorities of the port."

Beyond this, a salute is not required between ships and fortifications, or between ships themselves.'

1 For the controversies on the right of salute, see Ortolan, vol. 1, p. 316. The only sufficient object of making a salute obligatory is to give notice to the authorities of the arrival of an armed foreign ship.

2 Guide Pratique des Consulats, vol. 2, p. 38.

3 Halleck (p. 118, § 29,) says, a salute should be returned gun for gun. To refuse an exchange of salutes is regarded as evidence of a want of friendship and good will, which justifies the other party in asking explanations; but it can not in itself be considered an offense or an insult, sufficient to justify hostilities. Id., p. 110, § 21.

Searches forbidden.

68. Except as provided in article 85, a ship of one nation, on the high seas, is not subject to search by a ship of another nation.

Flag and documents.

69. Every ship navigating waters beyond the territory of its nation is bound to carry the flag of its nation, and to have on board documentary evidence of its national character.

The documentary evidence of the character of a public armed ship is the commission of its commander, or the written order of his government.

That of a private or other unarmed ship must be in the form prescribed by the article entitled Contents of Passport, in Chapter XX., entitled NATIONAL CHARACTER OF SHIPPING.

De Cauchy Dr. Mar. Int., vol. 1, p.47; Bluntschli, § 326 ; 1 Phill., § CCIII. 1 See provisions of Chapter XX., on NATIONAL CHARACTER OF SHIP.

PING.

CHAPTER VII.

DISCOVERY.

ARTICLE 70. Right of discovery.
71. Authority.

72. Ratification.

73. Right of possession.

74. Its exercise, how manifested.

75. Limits of continental discovery.

76. Abandonment of right of possession.

Right of discovery.

70. Every nation has the right of exploration for new territory.

Authority.

71. Authority to search for new territory which shall inure to the benefit of a nation, may be conferred by it on the members of any nation whatever, by a previous authorization or by subsequent ratification.' Without such authority, a discovery made even by a member of the nation confers no right upon it.

1 Heffter, § 70, subd. III., p. 142, and note 4.

A contrary doctrine has been contended for by the United States, but without sufficient ground. 1 Phill. Int. Law, § CCXXXV., p. 250; Heffter, 70, subd. III., p. 142, and note 4; Bluntschli, § 279.

Ratification.

72. A discovery not previously authorized by the nation can not be subsequently ratified by it, to the prejudice of any other nation, without the consent of the latter.

Right of possession.

73. The nation, under whose authority a discovery of territory is made, has the right to take possession of it as a part of its territory.

See Johnson v. McIntosh, 8 Wheaton's U. S. Sup. Ct. Rep., 543; Worcester v. Georgia, 6 Peters' U. S. Sup. Ct. Rep., 515; 3 Kent's Com., 378; 1 Id., 178, and note.

The individual discoverer has a prior right, as against other indivi duals, only to so much of the soil as he actually occupies and uses. American Guano Company v. United States Guano Company, 44 Barbour's (New York,) Rep., 23.

Its exercise, how manifested.

74. The intent to exercise the right of possession can be manifested only by an actual beneficial occupation.

1 Phillimore's Intern. Law, § CCXLVIII.; Bluntschli, Droit Intern. Codifié, § 278.

Limits of continental discovery.

75. If the discovered territory is a continental seacoast, or any part of it, possession thereof is deemed to extend into the interior, to the sources of the rivers emptying within the discovered coast, to all their branches, and the territory watered by them, except as already occupied.

5 American State Papers, 327–329. See to the contrary, Bluntschli, § 282.

Abandonment of right of possession.

76. The right of possession is deemed abandoned if the intent to exercise it is not manifested within twentyfive years after the discovery.

CHAPTER VIII.

EXPLORATION AND COLONIZATION.

ARTICLE 77. Right of exploring and colonizing.
78. Exception.

79. Right of pre-emption.

Right of exploring and colonizing.

77. A nation has for itself and each of its members the right to explore and colonize any territory not within the territorial limits of a civilized nation.

66

"When Englishmen establish themselves in an uninhabited or bar"barous country, they carry with them not only the laws but the sover'eignty of their own State." Adv. Genl. v. Ranee Surnomoye Dossee, 2 Moore's Privy Council Rep., (N. S.,) 59; Forsyth's Cases and Opinions in Const. Law, 20.

Exception.

78. The continents of Europe, Asia, and America. are, in every part, under the dominion of established government, and are not subject to colonization or settlement, in any portion thereof, except with the consent of such government.

Gardner's Institutes, p. 24, § 12.

Right of pre-emption.

79. The nation first exercising the right of colonization acquires thereby the right of first purchase from the native inhabitants. Whenever an uncivilized community has an established government, that government is to be respected by civilized governments so far at least, as that in the first instance intercourse with its people is to be sought through such government, and redress for injuries from any of them is to be demanded of it.

1 Phillimore's Intern. Law, § CCXLIII. Compare Bluntschli, Droit Intern. Codifié, §§ 280-1.

CHAPTER IX.

FISHERIES.

ARTICLE 80. Common right of fishery.
81. Limits.

Common right of fishery.

80. A nation has for itself and each of its members the right to take fish in any waters which are not within the territorial limits of any other nation whatever.

1 Phill. Int. Law, pp. 202, 205; Bluntschli, § 307; 1 Twiss, §§ 176, 182; Dana's Wheaton, §§ 180, 270-275.

See treaty, as to fisheries, between France and Great Britain, 11 November, 1867, 9 De Clercq, 773; the convention, relative to New Foundland fisheries, between France and Great Britain, 14 January, 1857, 7 De Clercq, 208; and an additional act between France and Spain regulating international fisheries, March 31, 1859, 7 De Clercq, 578.

Limits.

81. For the purposes of this Chapter, the territorial limits of a nation extend only to three geographical miles from low-water mark, to be measured with respect to bays, the mouths of which do not exceed ten geographical miles in width, from a straight line drawn from headland to headland.

Marten's Nouv. Rec., 16, p. 954.

Convention between England and France, Art. 9, Aug. 3, 1839.
Compare Article 28.

The right of fishermen lawfully pursuing their calling, to land for the purpose of drying and mending their nets, and procuring necessary supplies, is recognized in common with the equal privileges of foreign vessels generally, by the provisions of this Code, as to NAVIGATION, and as to UNIFORMITY.