Nations 24. Lord Stowell 25 has observed that the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established on the part of those claiming it, in the same manner as all other legal demands are to be substantiated by clear and competent evidence; in other words, by proof of ancient and constant usage. fishery on § 176. The right of fishing in the open Sea or main Right of Ocean is common to all Nations, on the same prin- the High ciple which sanctions the common right of navigation, Seas. namely, that he who fishes in the open Sea does no injury to any one, and the products of the Sea are in this respect inexhaustible and sufficient for all. It is possible indeed that one Nation may possess an exclusive right of navigation and fishing against another Nation, by virtue of treaty-engagements, as it is competent for a Nation to renounce a portion of its rights; and there have been instances of such renunciations both in ancient and modern times. Thus by the Treaty of Vienna, (16 March, 1731,) the House of Austria renounced in favour of the British and the Dutch the right of her subjects to send ships from the ports of the Low Countries to the East Indies. So by a Treaty concluded (anno 1400) between Henry VII of England and John II of Denmark, and by another treaty (anno 1523) concluded between Henry VIII of England and Christian II of Denmark, it was agreed that the merchants and fishermen of England should fish and traffic upon the Northern Sea betwixt Norway and Iceland, under the condition of first asking leave and renewing their Licences every seven years (de septennio in septennium) from the 25 The Twee Gebroeders, 3 P. 339. 24 Puffendorf, L. IV. c. 5. $8. Rob. Neutrality tional waters. Kings of Denmark and their Successors. At a later period the Dutch appear to have admitted the exclusive right of the British to the fisheries in the North Sea, by making payment and taking out licences to fish, which payment and licences were afterwards suspended by Treaties between England and the Burgundian Princes. "All this," writes Grotius 26, after citing various instances of treaties from ancient history, "does not prove that those who thus limited the navigation of any other people had taken possession of the sea, or of the right to sail there. For Nations as well as private persons may give up not only that right, which is properly their own, but that also which they have in common with all mankind, in favour of him for whose interest it is made.” Treaties of this order have now fallen entirely into disuse. $177. The Neutralisation of portions of the Sea, of jurisdic- that is, the exclusion of Foreign Nations from the use of its waters for belligerent purposes, does not conflict with those considerations of Natural Right, which forbid the exclusion of Foreign Nations from the peaceful use of its waters. It may be regarded as an established rule of Public Law, that a Nation may prohibit all acts of hostility on the part of other belligerent Nations within the limits of its Maritime Jurisdiction, including the open Sea along all its coasts within the distance of a marine league. The same privilege is enjoyed in respect of Bays or SeaChambers", that is, portions of the Sea cut off by lines drawn from one headland to another. 26 L. II. c. 3. § 4. 27 Life of Sir Leoline Jenkins, T. II. p. 727, 728, 780. Opinion of the Attorney-General of the The United States on the case of the claim of Neutrality, however, cannot be maintained to the extent of prohibiting a belligerent Power from passing over waters, claimed as neutral waters, with a view to an ulterior act of warfare against the Enemy. The act of passing inoffensively over such portions of water without any violence committed therein, is not considered as any violation of Neutral privileges; such waters are regarded in times of war, equally as of peace, as the common thoroughfare of Nations, and no permission is required for liberty to pass through them; although they are privileged so far, that no actual acts of hostility may be committed within them. In certain cases the privilege of Neutrality seems to extend over portions of the Sea which are not within the ordinary limits of the maritime jurisdiction of a Nation; as for instance, over arms of the Sea, and over broad Straits, such, for example as the Strait which separates Ireland from Great Britain, commonly called St. George's Channel 29. But this question belongs more properly to the Rights of Nations in time of War, and will be considered more fully in a subsequent part of this work. Bynkershoek makes one exception to the violation of Neutral Waters, and supposes that if an enemy should be attacked upon the High Sea, and take refuge within the jurisdictional waters of a Neutral Nation, the victor may pursue his vanquished foe dum fervet opus, and seize his prize within the jurisdiction of the Neutral State. Casaregis and some other foreign jurists maintain a similar doctrine; but Valin, Emérigon, Vattel, Azuni, and others are of an opposite opinion, and hold that when the flying enemy has entered the privileged limits of the Neutral Jurisdiction, he is under the safeguard of the 28 Martens, Précis, § 42. 30 Neutral Power. Lord Stowell 29 seems to consider that Bynkershoek's opinion is given with many qualifications, and expressly as an opinion which he did not find to have been adopted by any other writer, and Mr. Chancellor Kent regards Bynkershoek's opinion as rested by him entirely on the authority and practice of the Dutch, and not confirmed either by the writings of Publicists or the Usage of Nations. He holds, accordingly, that the opposite doctrine rests upon sounder views. In this equally as in any other case, a positive act of warfare would be in strict Law a violation of the privilege of the Neutral Power, which is entitled to protect all persons and property within its Maritime Jurisdiction. It is the privilege however of the Neutral Power alone to insist on the restoration of property captured within its Jurisdiction, and if there should have been extreme bad faith on the part of the worsted belligerent, as, for instance, if he should have lain in wait within the shelter of Neutral waters with a view to sally out suddenly, and take his adversary at a disadvantage, with the intention, if he should be worsted, to take refuge again within the Neutral waters, the Neutral Power may with reason decline to extend its shield over the vanquished, if the enemy whom he has attacked should pursue him dum fervet opus, and capture him within the Maritime Jurisdiction of the Neutral Power. It is sometimes a matter of treaty-engagement 31 between two Nations, that neither shall permit the ships or goods belonging to the citizens or subjects of the other to be captured within cannon shot of their 29 The Anna, 5 Robinson, p. 385. 30 Commentaries on American Law, Tom. I. § 120. 31 Treaty between Great Britain and the United States, (anno 1794,) Art. 25. Martens, Re cueil, V. p. 684. coast, or in any of the bays, ports, or rivers of their territory by the ships of war of a third Power. 33 Maritime Light Sea-marks. $178. It is not contrary to the Law of Nature or Right of that of Nations, writes Grotius 32, that those who shall Toll in retake upon them the burden and charge of securing spect of and assisting Navigation, either by erecting or main- houses and taining Lighthouses, or by affixing Sea-marks to give notice of Rocks and Shoals, should impose a reasonable tax on all who sail that way. Martens classes this right amongst the Jura litoris. Azuni considers that the Maritime Powers have a right to impose contributions upon all vessels, which are navigated within the limits of their Maritime Jurisdiction, to defray the expenses which are necessary to secure the safety or convenience of navigation. Accordingly if fire-beacons are kept alight on shore or afloat during the night, and buoys are placed upon the shoals to indicate the deep and shallow water passages, and skilful mariners acquainted with the dangers of the navigation are kept ready to act as pilots at the call of foreign vessels, and to conduct them safely along the coasts of a Nation; it is not contrary to the Law of Nature or of Nations that foreign vessels availing themselves of these aids to navigation, should be required to contribute to the expenses of maintaining them. Baldus 34 holds Sea-tolls to be most equitable in their nature, when they are levied to promote the security of navigation: "Vectigalia Maritima sunt æquissima, quoniam ad tuitionem maris et veram in eo securitatem præstandam constituta reperiuntur.” Every vessel, which casts anchor within the jurisdictional waters of a Nation, becomes liable to the jurisdiction of that Nation in regard to all reasonable dues 32 L. II. ch. III. § 4. 33 Droit Maritime de l'Europe, PART I. L. IV. ch. IV. § 153. 34 Baldus, Tit. de rer. div col. 2. S |