142 ARGUMENT OP THE UNITED STATES. 



When commerce became more extensive and better able to protect 

 itself, the modern conception of the freedom of the sea, first formally 

 set forth by Grotius, came gradually to be established. Bat the con- 

 trary doctrine was contended for by the great judicial authorities in 

 England. The views of Sir Matthew Hale and of Selden are well 

 known. The powerful argument of the latter is a permanent monu- 

 ment of the contention of his time in England. The opinion of Black- 

 stone was to the same effect. As late as 1824 another eminent English 

 writer, Mr. Chitty, in his Commercial Law, maintained the right of 

 dominion by maritime nations over neighboring seas, founded upon 

 the necessities of their situation. The surrender by England and other 

 maritime powers of their control over the seas, so long maintained, in 

 deference to the growing sentiment of the world and the demands of 

 free commerce, was slowly and reluctantly given. But that surrender 

 was, as universally understood, for the purposes of just, innocent, and 

 mutually profitably use by the nations whose borders touched the sea. 

 It was not thrown open again to general lawlessness. The whole argu- 

 ment in favor of the freedom of the sea was based upon the ground 

 that its free use by mankind was inoffensive and harmless and con- 

 ductive to the general good; and, therefore, ought not to be arbitrarily 

 restricted. 1 



Says Mr. Justice Story: 



Every ship sails there [in the open sea] with the unquestionable 

 right of pursuing her own lawful business without interruption, but 

 whatever may be that business, she is bound to pursue it in such a 

 manner as not to violate the rights of others. The general maxim in 

 such cases is sic utere tuo ut alienum non Imdas. (The Marianna Flora, 

 11 Wheaton's liepts., U. S. Sup. Court, p. 41.) 



of maritime jurisdiction was reversed — from mare elausum to marc liberum; and the sov- 

 ereignty allowed by international law over a portion of the sea- is in fact a decayed 

 and contracted remnant of the authority once allowed to particular states over a great 

 part of the known sea, and ocean" (p. 77). 



a Grotius (book n, chap, in, sec. 12, p. 445) remarks: "It is certain that ho who 

 would take possession of the sea, by occupation could not prevent & peaceful and in- 

 nocent navigation, since such a transit can not bo interdicted even on laud, though 

 ordinarily it would be less necessary and more dangerous." 



Aud Mr. Twiss(Int. Law, sees. 172, 185) says: " but, this is not the case with the 

 open sea, upon which all persons may navigate without the least prejudice to any 

 nation whatever, and without exposing any nation thereby to danger. It would 

 thus seem that there is no natural warrant for any nation to seek to take possession 

 of the open sea, or even to restrict the innocent use of it by other nations. * * * 

 The right of fishing in the open sea or main ocean is common to all nations on the 

 same principle which sanctions a common right of navigation, viz, tliat lie who fishes 

 in tlic open sea does no injury to any one, and the products of tlte sea are, in tlus respect, 

 inexhaustible and sufficient for all." 



