§ 191.-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,2 "near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, etc. Now, in all these respects its use is not inexhaustible, wherefore the nation to which the coasts belong, may appropriate 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 Bahrein 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 neighboring nations 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-engage ments 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 every 1 Wheaton's Elements, Part II, c. 4, § 5. Azuni, vol. 1, c. 11, art. 8. where 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 (Aug. 2, 18391) has accordingly provided that the subjects of either State shall enjoy an exclusive right of fishery within a distance of 3 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 3 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 10 miles, from a straight line drawn across from one cape to another.2 $192.-It appears from a notice issued by the British Board of Trade of the date of December, 1874,3 that the British Government came to an agreement with the North German Government in 1868: respecting regulations to be observed by British fishermen fishing off the coasts of the North German Confederation, and subsequently to a further agreement in 1874 with the German Government respecting regulations to be observed by British fishermen fishing off the coasts of the German Empire, and thereupon issued a notice for the guidance and warning of British fishermen. This notice implies a recognition upon the part of the British Government of the same principles of exclusive right to be enjoyed by German fishermen fishing off the North Sea coast of the German Empire, as it has recognized under the Convention of Paris (Aug. 2, 1839) in the case of French fishermen fishing off the coast of France, and as it has maintained in the same convention on behalf of British fishermen fishing off the British coast. The notice is of the following tenor: [Here follows the text of the "British notice to fishermen fishing off the coasts of the German Empire," printed post, p. 555.] H DE VATTEL: The Law of Nations, or the Principles of Natural Law applied to the Conduct and to the Affairs of Nations and of Sovereigns. Washington, 1916. [Translation by Charles G. Fenwick.] Page 107, § 287.-The sea near the coasts may be subject to ownership. The various uses to which the sea near the coasts can be put 1 Post, p. 524. This treaty, although operative in British waters, is not operative in French waters, not having been sanctioned by the French Legislative Chambers. Hertslet's Treaties, vol. xiv, p. 1200. 3 Hertslet's Treaties, vol. xiv, p. 1057. render it a natural object of ownership. Fish, shells, pearls, amber, etc., may be obtained from it. Now, with respect to all these things, the resources of coast seas are not inexhaustible, so that the Nation to which the shore belongs may claim for itself an advantage thus within its reach and may make use of it, just as it has taken possession of the lands which its people inhabit. Who can doubt that the pearl fisheries of Bahrein and Ceylon may be lawful objects of ownership? And, although the supply of fish is less easily exhausted, yet if a nation has specially profitable fisheries along its coasts, of which it can take possession, are we not to allow it to appropriate that gift of nature as being connected with the territory it occupies, and to keep to itself the great commercial advantages which it may enjoy, should there be fish enough to supply neighboring nations? But if, instead of taking possession of its coastal waters, it should once recognize the. common right of other nations to fish therein, it may no longer ex-. clude them, having left those fisheries in their primitive condition of common property, at least with respect to those who have been making use of them. The English did not take possession from the start of the herring fisheries on their coasts, so that other nations have come to have a share in them. § 288.—Another reason for appropriating the sea near the coasts.— A nation may appropriate such things as would be hurtful or dangerous to it if open to free and common use; and this is a second reason why the Powers extend their sovereignty over the seas along their coasts, as far as they can protect their right. It is a matter of concern to their security and their welfare that there should not be a general liberty to approach so near their possessions, especially with ships of war, as to hinder the passage of trading vessels and disturb navigation. During the wars between Spain and the United Provinces, James I, King of England, defined his marginal seas as bounds within which he asserted that he would not permit any of the belligerent Powers to pursue their enemies nor to station warships in order to lie in wait for vessels seeking to enter or leave the ports.1 These marginal seas, thus subject to a nation, are part of its territory and may not be navigated without its permission. But access may not lawfully be refused to vessels when their purpose is innocent and they are not under suspicion, since every owner is bound to grant free passage to strangers, even by land, when no harm or danger results from so doing. It is true that the nation itself is the judge of what it can do in the individual cases that arise, and if its judgment. is unfair it violates its obligations, but other nations must submit. A different rule applies in cases of necessity, when, for example, a vessel is forced to enter the waters of another nation to seek shelter from Selden, Mare Clausum, lib. ii. a storm. In this case the right of entry into any port, provided no harm be done, or compensation be made where it has been done, is, as we shall show at greater length, a remnant of primitive common rights which no man can renounce; so that the vessel may lawfully enter without permission if it be unjustly refused. 3 § 289.-How far marginal waters may be appropriated.—It is not easy to determine just what extent of its marginal waters a nation may bring within its jurisdiction. Bodin1 claims that, following the common rule of all maritime nations, the sovereignty of the Prince extends as far as 30 leagues from the shore. But this precise determination could only be based upon a general consent of nations, which it would be difficult to prove. Each State may regulate as it thinks best the use of those waters as far as the affairs of its citizens, either with one another or with the sovereign, are concerned; but between nation and nation the most reasonable rule that can be laid down is that in general the sovereignty of a State over its marginal waters extends as far as is necessary for its safety and as far as it can be effectively maintained; because on the one hand a nation may appropriate only so much of common property, like the sea, as it has need for some lawful end (§ 281), and, on the other hand, it would be an idle and ridiculous pretension to claim a right which a nation. would have no means of enforcing. The naval power of England gave occasion to its Kings to claim sovereignty over its marginal seas as far as the opposite shore. Selden cites a solemn act, from which it appears that, in the time of Edward I, this sovereignty was recognized by the majority of the maritime nations of Europe, and it was recognized, in a certain degree, by the Republic of the United Provinces in the Treaty of Breda in 1667, at least to the extent of showing the honors of the flag. But in order to put so extensive a right on a sound basis, it must be clearly shown that all the powers concerned have given their express or implied consent. The French have never agreed to this claim on the part of England, and in the very Treaty of Breda of which we have just spoken Louis XIV would not even allow that the channel should be called the English Channel or British Sea. The Republic of Venice claimed for itself the sovereignty of the Adriatic Sea, and the ceremonies performed every year in connection with its claims are familiar to all. In support of that right are cited the example of Uladislas, King of Naples, of the Emperor Frederick III, and of certain Kings of Hungary, who requested of the Venetians permission to sail their vessels in that sea. It seems to me unquestionable that the Republic possessed sovereignty to a certain distance from its coasts, over an area which it could take 1 De la République, liv. i. chap. x. 2 See Selden's treatise, Mare Clausum. Ibid., lib. ii, cap. xxviii. 4 See Selden's treatise, Mare Clausum, lib. i. cap. xvi. H possession of and which it was important that the State should have jurisdiction over for its own protection; but I doubt very much. whether in these days any power would be disposed to recognize the sovereignty of Venice over the entire Adriatic. Such claims of sovereignty are respected so long as the Nation which makes them is able to maintain them by force; they cease when it can no longer do so. To-day the area of marginal seas which is within reach of a cannon shot from the coast is regarded as part of the national territory, and consequently a vessel captured under the cannon of a neutral fortress is not lawful prize. $290.-Shores and ports.-The shores of the sea belong unquestionably to the nation which possesses sovereignty over the territory of which they form a part, and they come under the head of public property. If the Roman jurists class them as the common property of all (res communes), it is with respect to their use only, and it should not be inferred that they considered them as not subject to sovereignty, for the contrary is evident from a great number of laws. Ports and harbors are still more clearly subject to, and even a part of, national territory, and consequently are the property of the nation. As regards the effects of ownership and sovereignty, all that is said of the land itself applies to them. § 291.-Bays and straits.-All that has been said of marginal seas applies more especially and with greater reason to roads, bays, and straits, inasmuch as they are even more capable of being effectively possessed and are of greater importance to the safety of the State. But I am speaking of bays and straits of small area, and not of wide stretches of sea sometimes called by these names, such as Hudson's Bay and the Straits of Magellan, over which sovereignty, and still less ownership, could not be claimed. A bay, entrance into which can be prevented, may be possessed and made subject to the laws of the sovereign; and it is important that this be so, since the nation might be much more easily insulted in such waters than along the coast which is exposed to the winds and the force of the waves. § 292.-Straits in particular.-It must be specially noted with regard to straits that when they connect two seas the navigation of which is common to all or to several nations, the owner of the strait cannot refuse passage to the other nations, provided such passage be innocent and without danger to the owner. To refuse to do so without good reason would be to deprive those nations of an advantage which is granted to them by nature; and besides, the right to such passage remains to them from primitive common ownership. But the care of its own safety authorizes the nation owning the strait to use certain precautions and to exact certain formalities, commonly regulated by the custom of nations. It has also the right to levy a moderate toll upon vessels which pass through, partly be |