108 CASE OF GREAT BRITAIN. 



lish the claim of a particular nation to a right of property ia the sea, 

 that nation must obtain and keep possession of it, which is impos- 

 sible. 

 142 2. In the second place, the sea is an element which belongs 



equally to all men, like the air. No nation, tlion, has the right 

 to appropriate it, even though it might be physically possible to do so. 

 uTv^'i ^''*°^*?' It is thns demonstrated that the sea can not become the exclusive 

 I'ii Mer "''l*ui I property of any nation. And, conse(iuently, the nee of the sea for 

 pp. 120-126. ' these purposes, remains open and common to all mankind. 



NO PRESCRIPTION IN OPEN SEA. 



lu a note on this passage of Wbeaton, Mr. Dana adds 

 tbat— 



The right of one nation, or of several nations, to an exclusive juris- 

 diction over an ojien sea, was, as stated in the text, rested solely on a 

 kind of prescription. But, however long ac(iuiesced in, such an appro- 

 priation is inadmissible, in the nature of things; and whatever may 

 be the evidence of the time or nature of the use, it is set aside as 

 bad usage which no evidence can make legal. 



Sir li. Pliillimore writes: 



Phillimore,"In- The right of navigation, fishing, and the like, upon the open sea, 



tern at ion al being jura mcvfr faeuliaiis, rights which do not require a continuoiis 



tion^isT^I Sm ®^*^'^''^*' ^*^ maintain their validity, but which may or may not be 



' ' ' exercised according to the free will and pleasure of those entitled to 



them, can neitlier be lost by non-user or prescvihed against, nor acquired 



to the exclusion of others by having l)een immemorially exercised by 



one nation only. No presumption can arise that those who have not 



hitherto exercised such rights, have abandoned the intention of ever 



doing so. 



POSITION TAKEN BY THE UNITED STATES IN 1802 : CUBA. 



The following- position was correctly taken by the United 

 States in 1802, and, it is presumed, will be adliered to by 

 that country to-day. 



In that year S])ain pushed her claim to an extended 

 jurisdiction around the island of Cuba. Secretary Seward 

 wrote : 



Mr. Seward to It can not be admitted, nor indeed is Mr. Tessara understood to 

 wf l^^TYo^ t^^ claim, that the mere assertion of a Sovereign, by an act of legisla- 

 of 'Internatioual ^io^ij however solenui, can have the etfect to establish and fix its exter- 

 Law," vol. i, sec. nal maritime Jurisdiction. . . . He can not, by a mere Decree, extend 

 32, p. 103. the limit and fix it at ti miles, because, if he could, he could in the same 



See Blue Book, manner, and upon moti V(!S of interest, ambition, and even upon caprice, 

 "United States, fl^ it at 10, or 20, or .50 miles, without the consent or acquiescence 

 518 '' ^^ °^ other Powers which have a common right Avith himself in the free- 



See Appendix, doni of all the oce,aiis. Such a pretension could never be successfully 

 vol. iii. or rightfully maintained. 



It is claimed by Great Britain that the facts already 

 stated establish : 

 Chapter I. ( \)_ That ft'oiiithe earliest times down to the year 



ciSiour.'"''^ '""■ 1^3 1^^'^ *^'*^ ^'^^P'^ ^*" tii'^at Britain and the United States 

 and of other foreign nations navigated the non-terri- 

 torial waters of Behriiig Sea and the other parts of the 

 North Pacific, and exercised freely the natural and common 

 rights therein without interference or remonstrance by 

 Russia. 

 Chapter II. (]^)_ rpj,^^ whoii, ill tlic ycar 1821, Russia, in the tei-ms of 



tlie Ukase of that date, advanced claims to exercise control 



