CASE OF THE HARRIET. 189 



that admission sustain the claim which the province of Buenos Ayres, 

 or, in other woids, the Argentine Republic, sets up to sovereignty and 

 jurisdiction ? 



If, then, the sovereignty rights of Spain to those southern islands 

 descended to the ancient viceroyalty of the Rio de la Plata by virtue 

 of the revolution, and if that viceroyalty is now divided into several 

 sovereignties, independent of each other, to which one of these several 

 sovereignties shall these rights be assigned? Where are the title deeds 

 of the Argentine Republic ? Where are the releases of the other na- 

 tions of the viceroyalty to that Republic? 



But, again, if it be admitted hypothetically that the Argentine Re- 

 public did succeed to the entire rights of Spain over these regions, and 

 that when she succeeded Spain was possessed of sovereign rights, 

 the question is certainly worth examination, whether the right to ex- 

 clude American vessels and American citizens from the fisheries there 

 is incident to such a succession to sovereignty. 



The ocean fishery is a natural right, which all Nations may enjoy 

 in common. Every interference with it by a foreign power is a national 

 wrong. When it is carried on within the marine league of the coast, 

 which has been designated as the extent of national jurisdiction, rea- 

 son seems to dictate a restriction, if, under pretext of carrying on the 

 fishery, an evasion of the revenue laws of the country may reason- 

 ably be apprehended, or any other serious injury to the sovereign of the 

 coast, he has a right to prohibit it; but as such prohibition derogates 

 from a natural right, the evil to be apprehended ought to be a real, not 

 an imaginary one. No such evil can be apprehended on a desert and 

 uninhabited coast; therefore, such coasts form no exception to the com- 

 mon right of fishing in the seas adjoining them. All the reasoning on 

 this subject applies to the large bays of the ocean, the entrance to 

 which can not be defended; and this is the doctrine of Vattel, ch. 23, 

 sec. 291, who expressly cites the Straits of Magellan as an instance 

 for the application of the rule. 



As to the use of the shores for the purposes necessary to the fish- 

 ery, that depends on other principles. When the right of exclusive 

 dominion is undisputed the sovereign may with propriety forbid the 

 use of them to any foreign nation, provided such use interferes with 

 any that his subjects may make of them; but where the shore is un- 

 settled and deserted, and the use of it, of course, interferes with no 

 right of the subjects of the power to which it belongs, then it would 

 be an infringement of the right to the common use of the shores, as 

 well as of the ocean itself, which all nations enjoy by the laws of 

 nature, and which is restricted only by the paramount right which the 

 sovereign of the soil has to its exclusive use when the convenience or 

 interests of his subjects require it, or when he wishes to apply it to 

 public purposes. It is true that he is the judge of this interest 

 and of the necessity of using it for his public purposes, but justice 

 requires that where no such pretension can be made the shores, as 

 well as the body of the ocean, ought to be left common to all. 



These principles seem to have dictated the articles in the treaties 

 between the United States and Great Britain. The third article of the 

 Treaty of Peace of 1782 declares that the people of the United States 

 shall continue to enjoy unmolested the right to take fish on the Grand 

 Banks, etc., and to dry and cure their fish in any of the unsettled bays, 

 harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, 

 so long as the same shall remain unsettled; but that when settlements 



