MARITIME LAW. CHAPTER I. INTERNATIONAL MARITIME LAW. FREEDOM OF THE SEA-RIGHT OF APPROACH, OF VISITATION, AND RESISTANCE ΤΟ of the sea. 1. THE SEA is free. It is incapable of being reduced Freedom into possession, as a subject of property. This principle lies at the root of Maritime Law; it is one on which, since Grotius wrote his "Mare Liberum," there has been a complete agreement between the opinions of writers on Public Law and the decisions of Courts of Justice.1 The ocean is common to all nations for purposes of commerce, and as a means of intercourse amongst mankind. On the sea all are independent; there is there a complete equality of right. Every vessel in time of peace has a right to consult its own 1 Kent's Com. i. p. 29.-Selden's dominion was supported by the celebrated treatise "Mare Clausum" opinion of most nations. But Selis not an exception, although in- den's design was to establish the tended as a reply to Grotius. It supremacy of the King of England may be admitted, however, that at over the narrow seas surrounding the time he wrote, the proposition his dominion-a quite distinct questhat the sea was capable of private | tion. B safety and convenience, and to pursue unmolested its own course and business; but, whatever may be that business, she is bound so to pursue it as not to violate the rights of others.1 2. It results from this that no nation has any jurisdiction at sea, except over the persons of its own subjects in its own public and private vessels; for as the sea is the common highway of all, and appropriated to the use of all, no one can thereon vindicate to himself a superior or exclusive prerogative. In an international point of view, moreover, States are, as regards each other, in a position of perfect equality, and are, in the absence of express treaty stipulations, sovereign and independent, whatever the relative powers of each community may be.2 But the courtesy of civilised nations in time of peace, and the rights of belligerent states in time of war, have introduced customs which tend somewhat to narrow the absolute independence of nations on the high seas. In time of peace merchant-ships have the right of approaching each other on the ocean, either to relieve their own distress, or to procure information, or to ascertain the character of strangers. In time of war, in order to enforce the just rights of belligerent nations, and to ascertain the real as well as the assumed character of vessels at sea, the Law of Nations arms the ships of a belligerent with the rights of approach, of visitation, and of search. The exercise of these rights springs from the duty of self-preservation; it is incident to The Marianna Flora, 11 Wheaton, p. 38. Kent's Com. i. p. 29. 2 Wheaton, International Law, p. 58, Ed. 2. 3 Kent's Com. i. p. 154. The Marianna Flora, 11 Wheaton, p. 43. The Maria, 1 Robinson, p. 36. a state of war; and, unless where granted by treaty, ceases on the return of peace.1 approach. 3. Upon the general question of the right to ap- Right of proach on the high seas, it had at one time been an opinion, supported by some show of authority, that no ship had a right to approach another at sea; and that every ship had a right to draw round her a line of jurisdiction, within which no other was at liberty to intrude; that, in short, she might appropriate so much of the ocean as she might deem necessary for her protection, and prevent any nearer approach. But the doctrine is in opposition to the plainest principles of Public Maritime Law. "It appears to us," said Mr. Justice Story, "novel, and not supported by any authority. It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations 1 French writers (Hautefeuille, Ortolan, Massé, &c.) distinguish between visite, which is equivalent to the English "visitation and search," and recherche, which latter they consider the exercise of a jurisdictional act of sovereignty. The utmost extent to which M. Hautefeuille, who is ever foremost in the assertion of the rights and privileges of neutral states, will allow the droit de visite to extend, is for the purpose of verifying the nationality of the ship. Even thus, it is restricted by him to a state of war; as the right cannot exist in peace, being a power conceded to belligerents for the exercise of belligerent rights. Treaties also, or conventions, framed for the purpose of granting this right of search reciprocally as between states, are, in his opinion, violations of International Law, and incom patible with the acknowledged in- |