vessels not in the neighbourhood of their coasts. This practice was the subject of long and fruitless negociations, and led at length to open war. Great Britain, however, did not contend that British vesels actually engaged in illicit trade were entitled to pass unmolested by the revenue cruizers of Spain until they came within the maritime jurisdiction of that country, but she maintained that Spain enforced her right of search for the protection of her commerce with her Colonies in an unreasonable and vexatious manner. Mr. Justice Story" has properly pointed out that the State which authorises her cruizers to effect such seizures beyond the limits of her Maritime Jurisdiction, incurs a responsibility towards Foreign Powers. It is only under the Comity of Nations in matters of Trade and Health, that a State can venture to enforce any portion of her Civil Law against foreign vessels, which have not as yet come within the limits of her Maritime Jurisdiction. A State exercises in matters of Trade for the protection of her Maritime Revenue, and in matters of Health for the protection of the lives of her people a Permissive Jurisdiction, the extent of which does not appear to be limited within any certain marked boundaries, further than that it cannot be exercised within the Jurisdictional waters of any other State, and that it can only be exercised over her own vessels and over such foreign vessels as are bound to her ports. If, indeed, the Revenue Laws or the Quarantine Regulations of a State should be such as to vex and harass unnecessarily foreign commerce, foreign Nations will resist their exercise.

46 The Mariana Flora, XI. Wheaton, p. 40. Church v. Hubbard, 2 Cranch, p. 235.

47 Kent's Commentaries, Tit. I.

48

Right of
Fishery.

If, on the other hand, they are reasonable and necessary, they will be deferred to ob reciprocam utilitatem. In ordinary cases indeed, when a merchant ship has been seized on the open seas by the cruizer of a Foreign Power, when such ship was approaching the coasts of that Power with an intention to carry on illicit trade, the Nation, whose mercantile flag has been violated by the seizure, waives in practice its right to redress, those in charge of the offending ship being considered to have acted with mala fides and consequently to have forfeited all just claim to the protection of their Nation.

$182. The Right of Fishery comes under different considerations of Law from the Right of Navigation, as the Right of Fishery in the open sea within certain limits may be the exclusive Right of a Nation. The usus of all parts of the open sea in respect of navigation is common to all Nations, but the fructus is distinguishable in law from the usus, and in respect of fish, or zoophites, or fossil substances, may belong in certain parts exclusively to an individual Nation. The Practice of Nations has sanctioned the exclusive Right of every Nation to the fisheries in the waters adjacent to its coasts within the limits of its Maritime Jurisdiction," and accordingly we find that a permission for the subjects of one Nation to fish within the Jurisdictional waters of another Nation is a frequent subject of Treaty-engagement. The various uses of the sea," writes Vattel, 50 "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 which the coasts belong, may appropriate 49 Wheaton's Elements, Part II. c. 4. § 5. Azuni, Tom. I. c. II. 50 Droit des Gens, L. I. § 287.

Art. 8.

to itself an advantage which Nature has so placed within its reach, as to enable it conveniently to make itself master of it and to turn it to profit, in the same manner as it has been able to occupy the dominion of the land which it inhabits. Who can doubt that the

pearl fisheries of Bahrem and Ceylon may lawfully become property? and though where the catching of (swimming) fish is the object, the fishery appears less liable to be exhausted, yet, if a Nation has on its coast a particular fishery of a profitable nature, and of which it may render itself master, shall it not be permitted to appropriate to itself that Natural benefit, as an appendage to the country which it possesses, and to reserve to itself the great advantages which it may derive by commerce, in case there be a sufficient abundance of fish to enable it to furnish the neighbouring Nations with a supply? But, if so far from making itself master of a fishery, a 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 state of communion, at least with respect to those who have been accustomed to take advantage of it." Treaty-engagements in such matters do not give any other right than that which is expressed in the specific terms, although there may be found in the recitals of certain Treaties recognitions of Rights founded on grounds independent of all Treaties. Thus there are early Treaties between France and England, under which it was agreed that the Subjects of either Crown might fish anywhere in the seas, which separate the two kingdoms, during certain seasons of the year. The legitimate inference, deducible from the fact that such fishery was made a matter of Treaty-engagement, is, that at other seasons of the year the Subjects of the

two Crowns had not a common right of fishing everywhere in those seas. The existing Treaty-engagements between Great Britain and France proceed upon another view of mutual convenience, namely, that it is desirable to define the limits within which the general right of fishing upon all parts of the coasts of either Nation shall be exclusively reserved to its own Subjects. The Convention of Paris (3 Aug. 1839)1 has accordingly provided that the Subjects of either State shall enjoy an exclusive right of fishery within a distance of three miles from low water-mark along the whole extent of its coasts. There is one peculiar provision in this Convention which deserves notice. By the Ninth Article it is stated to be the understanding of both parties that the distance of three miles, limiting the exclusive right of fishery upon the coasts of the two countries, shall be measured in the case of bays, of which the opening shall not exceed ten miles, from a straight line drawn across from one Cape to another.

Ceremonial $183. The High Seas being the common highway of the High of Nations, all Nations meet thereon on terms of

Seas.

equality. The Usage of Nations has accordingly established a Ceremonial of the Sea to be observed between the public vessels of different Nations, and between public and private vessels respectively which meet upon the High Seas 52.

The question of Maritime Ceremonial, as regards the High Seas, was at one time considered not to involve considerations of courtesy merely as between Nation and Nation, but to imply a recognition of superiority and an acknowledgment of inferiority, as

51 Martens, N. R. XVI. p. 954. 52 Klüber, $127. Martens, Précis, $158. Bynkershoek de

Dominio Maris, c. 1. and 4. Wheaton's Elements, Pt. II. c. 3. $7.

the case might be, on the one side or on the other, and disputes on this head have frequently given occasion to war Nations, for instance, have claimed Rights of Sovereignty over considerable portions of the open Sea, and have insisted upon the public vessels of other Nations lowering their flag when sailing in those seas; or they have asserted a general Maritime supremacy, and insisted upon the public vessels of other Nations striking their flag to their armed ships, whenever they should meet them upon the High Seas. All these pretensions are now matters of History, and as far as salutes between the vessels of different Nations on the High Seas are concerned, whether those salutes consist in striking the flag, (salut de pavillon,) or in lowering the sails, (salut des voiles,) or in firing a certain number of guns, (salut du cannon,) the Ceremonial is essentially a matter of courtesy. The Ceremonial as between public vessels is now confined entirely to a salute of guns. It is voluntary on either side, and it proceeds altogether upon a calculation of equality, as between Nations. All International salutes are therefore in strict practice to be returned gun for gun. In some cases this is matter of direct Convention between Nations; in other cases it is matter of courteous understanding between the commanders of the respective vessels; and Nations for the most part allow the commanders of their public vessels to reciprocate the special complimentary salutes, which the rules of their own service authorise in the case of one ship of war meeting another ship of war bearing the flag of an officer of superior rank. Thus a British ship" of war, bearing the broad

53 Ortolan, Diplomatie de la Mer, L. II. c. 15. Declaration of war by England against Hol

land, in 1652, and again in 1671. 54 Regulations relating to Salutes.