DESPATCHES, REPORTS, CORRESPONDENCE, ETC. 95 



on this question, so must Grotius rise, who contended for the mare 

 liber-urn; and his accurate commentator, Rutherforth, confirms his 

 principles in the following passage: 



A nation, by settling upon any tract of land, which at the time of such settle- 

 ment had no other owner, acquires, in respect of all other nations, an exclusive 

 right of full or absolute property, not only in the land, but in the waters like- 

 wise that are inrluded within the land, such as rivers, pools, creeks, or bays. 

 The absolute property of a nation, in. what it has thus seized upon, is its right 

 of territory. 2 Ruth. b. 2, c. 9, s. 6. 



Congress, too, have acted on these ideas, when, in their collection 

 laws, they ascribe to a State the rivers wholly within that State. 



It would seem, however, that the spot of seizure is attempted to be 

 withdrawn from the protection of these respectable authorities, as 

 being in the Bay of Delaware, instead of the River Delaware. 



Who can seriously doubt the identity of the River and Bay of Dela- 

 ware ? How often are different portions of the same stream denomi- 

 nated differently? This is sometimes accidental; sometimes, for no 

 other purpose than to assist the intercourse between man and man, 

 by easy distinctions of space. Are not this river and this bay fed by 

 the same springs from the land, and the same tides from the ocean? 

 Are not both doubly flanked by the territory of the United States? 

 Have any local laws, at any time, provided variable arrangements 

 for the river and the bay? Has not the jurisdiction of the contig- 

 uous States been exercised equally on both ? 



But suppose that the river was dried up, and the bay alone re- 

 mained, Grotius continues the argument of the 7th section, of the 3d 

 chapter, of the 2d book above cited, in the following words: 



By this instance it seems to appear, that the property and dominion of the 

 sea might belong to him, who is in possession of the lands on both sides, 

 though it be open above, as a gulf, or above and below, as a strait; provided it 

 is not so great a part of the sea, that, when compared with the lands on both 

 sides, it cannot be supposed to be some part of them. And now, what is thus 

 lawful to one king or people, may be also lawful to two or three, if they have 

 a mind to take possession of a sea, thus enclosed within their lands : for it 

 is in this manner that a river, which separates two nations, has first been 

 possessed by both, and then divided. 



The gulfs and channels, or arms of the sea, are, according to the regular 

 course, supposed to be belong to the people with whose lands they are encom- 

 passed. Puff. b. 4, c. 5, s. 8. 



Valin, in b. 5, tit. 1, p. 685, of his commentary on the marine 



ordonnance of France, virtually acknowledges that particular seas 



may be appropriated. After reviewing the contest between 



56 Grotius and Selden, he says, " S'il (Selden) s'en fut done tenu 



la, ou plutot, s'il eut distingue 1'ocean des mers particulieres, 



et meme dans 1'ocean, 1'etendue de mer. qui doit etre censee appartenir 



aux Souverains des cotes, qui en sont baignees, sa victoire eut ete 



complette." 



These remarks may be enforced by asking, what nation can be 

 injured in its rights, by the Delaware being appropriated to the 

 United States? And to what degree may not the United States be 

 injured, on the contrary ground? It communicates with no foreign 

 dominion; no foreign nation has ever before, exacted a community 

 of right in it, as if it were a main sea : under the former and present 

 Governments, the exclusive jurisdiction has been asserted; by the 

 very first collection law of the United States, passed in 1789, the 

 county of Cape May, which includes Cape May itself, and all the 



