94 APPENDIX TO BRITISH CASE. 



Hence the inquiry is reduced to this simple form, whether the place 

 of seizure was in the territory of the United States ? 



From a question originating under the foregoing circumstances, is 

 obviously and properly excluded every consideration of a do- 

 55 minion over the sea. The solidity of our neutral right does not 

 depend, in this case, on any of the various distances claimed on 

 that element by different nations possessing the neighbouring shore ; 

 but if it did, the field would probably be found more extensive, and 

 more favourable to our demand, than is supposed by the document 

 above referred to. For the necessary or natural law of nations, 

 unchanged as it is, in this instance, by any compact or other obliga- 

 tion of the United States, will, perhaps, when combined with the 

 treaty of Paris in 1783, justify us in attaching to our coasts an extent 

 into the sea beyond the reach of cannon shot. 



In like manner is excluded every consideration, how far the spot 

 of seizure was capable of being defended by the United States. For, 

 although it will not be conceded that this could not be done, yet will 

 it rather appear, that the mutual rights of the States of New Jersey 

 and Delaware, up to the middle of the river, supersede the necessity 

 of such an investigation. 



No; the corner stone of our claim is, that the United States are 

 proprietors of the lands on both sides of the Delaware, from its head 

 to its entrance into the sea. 



The high ocean, in general, it is true, is unsusceptible of becoming 

 property. It is a gift of nature, manifestly destined for the use of all 

 mankind; inexhaustible in its benefits; not admitting metes and 

 bounds. But rivers may be appropriated, because the reverse is their 

 situation. Were they open to all the world, they would prove the in- 

 lets of perpetual disturbance and discord; would soon be rendered 

 barren by the number of those who would share in their products; 

 and moreover may be defined. 



A river, considered merely as such, in the property of the people through 

 whose lands it flows, or of him under whose jurisdiction that people is. Grot. 

 b. 2, c. 2, s. 12. 



Rivers might be held in property; though neither where they rise, nor where 

 they discharge themselves, be within our territory, but they join to both, or the 

 sea. It is sufficient for us that the larger part of water, that is, the sides, is 

 shut up in our banks, and that the river, in respect of our laud, is itself small 

 and insignificant. Grot. b. 2. c. 3, s. 7; and Barbeyrac, in his note, subjoins, 

 that neither of those is necessary. 



Rivers may be the property of whole States. Puff. b. 3, c. 3, s. 4. 



To render a thing capable of being appropriated, it is not strictly necessary 

 that we should enclose it, or be able to enclose it, within artificial bounds, or 

 such as are different from its own substance; it is sufficient, if the compass and 

 extent of it can be any way determined. And therefore Grotins hath given 

 himself a needless trouble, when, to prove rivers capable of property, he useth 

 this argument, that, although they are bounded by the land at neither end, but 

 united to the other rivers or the sea, yet it is enough that the greater part of 

 them, that is their sides, are enclosed. Puff. b. 4, c. 5, s. 3. 



When a nation takes possession of a country in order to settle there, it 

 possesses everything included in it, as lands, lakes, rivers, &c. Vattel, b. 1, c. 22, 

 s. 266. 



To this list might be added Bynkershoek and Selden. But the dis- 

 sertation of the former, de dominio maris, cannot be quoted with ad- 

 vantage in detachment; and the authority of the latter, on this head, 

 may, in the judgment of some, partake too much of affection for the 

 hypothesis of mare clausum. As Selden, however, sinks in influence 



