174 



iiate enjoyment of tlie i)eople of ;ill nations. Tlicy cannot ^Yell be 

 enjoyed unless tliey are under particular control, so tliat tlie product 

 may be taken at tlie riglit season and in limited amounts. In other 

 words, they require that sort of care, restraint, and self-denial which 

 is induced only by a recognition of property in those who bestow such 

 care, and practice such restraint and self-denial. I am relie^'ed from 

 the necessity of showing that these things, even when beyond territorial 

 waters, maybe appropriated asproperty by the nations in whose neigh- 

 borhood they lie, and Avho choose to exercise the restraint and control 

 required for tlieir preservation ; for, the opinions of great writers upon 

 international law are explicit and concurring to that effect. "And Great 

 Britian in its counter case and by its counsel in argument, distinctly 

 admit that they are the subject of property. Great Britian, in its Coun- 

 ter Case, referring to the legislation affecting the pearl fisheries of Cey- 

 lon, says that "the claim of Ceylon is not to an exceptional extent of 

 water forming part of the high seas as incidental to the territorial 

 sovereignty of the island, but is a claim to the products of certain sub- 

 merged portions of the land, which have been treated from time imme- 

 morial by the successive rulers of the islaiul as subjects of property and 

 jurisdiction." The counsel for the British Government, enforcing the 

 theory that international law recognizes the right of a state to acquire 

 the soil under the sea, and consequently the products attached to it, 

 and referring to theCeylon and other fisheries, say that this claim "may 

 be legitimately made to oyster beds, i^earl fisheries, and coral reefs." 



But looking at the grounds upon which j)roperty in pearl and other 

 oyster beds, coral reefs, and the like, rest, it immediately appears that 

 those things are incapable of occupation or possession in the ordinary 

 sense of those words. That they are attached to the soil under the sea 

 is not, it seems to me, at all controlling in the inquiry as to property. No 

 such reason is assigned by the writers upon international law. What 

 they do say on the subject has reference to social utility and to the right 

 of the nation, near whose territory, these things are found, to enjoy the 

 advantayes of its peculiar relation to them. Such things are exhaust- 

 ible j there is not enough for all; if left open to indiscriminate and 

 unregulated attack they would be destroyed; whereby a particular 

 nation would be injured. 



Puffendorf says: "As for fishing, though it hath much more abund- 

 ant subject in the sea than in lakes or rivers, yet 'tis manifest that it 

 may in part be exhausted, and that if all nations should desire such 

 right and liberty near the coast of any particular country, that country 



