CASE OF GREAT BRITAIN. 107 



establishing a rational close season for the fur seal is wise and neces- 

 sary no one will dispute, but to prevent foreigners from sealing on the 



high sea or within the Kauischalkan .Sea (whicli is not even 

 140 inclosed by American territory, its west and north-west shores 



being Russian) is as unwarranted as if England should warn 

 fishermen of other nationalities oft' the Newfoundland banks. 



Ill the absence of any indication as to the gronnds upon 

 which the United States base so uuiJiecedented a chiini as 

 that of a right to protection of or property in animals 

 fercv naturw upon the high seas, the further consideration 

 of this chum must of necessity be postponed; but it is 

 maintained that, according to the principles of interna- 

 tional law, no property can exist in animals ferw naturw 

 when frequenting the high seas. 



141 CHAPTER IX. 



General Conclusions upon flic whole Cane. 



It now remains to state the princii)les of law applicable 

 to the whole Case, some authorities bearing thereon, and 

 the conclusions of fact established by the foregoing state- 

 ment, and to formulate the final propositions both of law 

 and of fact, upon which (Jreat Britain will insist. 



BEHRING 8EA AN OPEN SEA. 



The sea noAv known as Behring Sea is an open sea forming 

 part of the common highway of all nations, and especially 

 of Great Britain to her possessions in the northern parts 

 of North America. In the absence of Treaty or interna- 

 tional arrangement, all the nations of the world have the 

 right to navigate and fish in such waters, and no mere 

 declarations or claims by anyone or more nations can take 

 away or restrict the rights of other nations. Moreover, 

 mere non-use or absence of the exercise by any nation of 

 her rights cannot in any way impair or take away the right 

 of that nation or of any other nation to exercise these 

 rights. They are, in fact, the common heritage of all man- 

 kind, and incapable of being appropriated by any one or 

 more nations. 



The rights and interests of nations in the open sea are ^^^^°J.> ^ ''^^.JJ}; 

 correctly stated by Chancellor Kent as follows : i, 9th edition. 



"^ '' Boston, 1858, p. 



The open sea is not capable of being possessed as private property. 29. 

 The free use of the ocean for navigation and tishing is common to all 

 mankind, and the public jurists generally and explicitly deny that the 

 mam ocean can ever be appropriated. 



The controversv between Grotius and Selden as to the wheaton, Eie- 



. , .*'., . n 1 1 ij.1 iiieuts, otii eai- 



right ot appropriation by a nation ot the sea beyond the tion by Dana, 

 immediate vicinity of the coast is thus reviewed by Wheaton: i»6G,p.269. 



I'licro are only two decisive reasons applicable to the question. The 

 first IS physical and material, which would alone be sufticient; but 

 when coupled with the second reason, which is purely moral, will be 

 found conclusive of the whole controversy. 



1. Those things which are originally the common property of all 

 mankind can ouly become the exclusive property of a particular indi- 

 vidual or society of men, by means of possession. In order to estab- 



