190 CASES OF THE PEARL, LORIOT, AND HARRIET. 



are made there they can not enjoy the right without a previous agree- 

 ment with the inhabitants or possessors of the soil. 



His excellency will perceive from the terms of this treaty that no 

 rights of public sovereignty are claimed against the United States, but 

 that the private rights of those who have settled and cultivated lands 

 on the margin of the ocean are protected in such way as to secure their 

 individual improvements from injury. 



In the treaty of Utrecht,* France is allowed the use of the unsettled 

 shores, for the purpose of drying fish, by certain metes and bounds. 



The treaty concluded between Great Britain and Spain, in 171)0, 

 already alluded to, is to be viewed, in reference to this subject; be- 

 cause both nations, by restricting themselves from forming settlements, 

 evidently intended that the fishery should be left open, both in the 

 waters and on the shores of these islands, and perfectly free, so that 

 no individual claim for damage, for the use of the shores, should ever 

 arise. That case, however, could scarcely occur, for whales are in- 

 variably taken at sea, and generally without the marine league, and 

 seals on rocks and sandy beaches, incapable of cultivation. The stipu- 

 lation in the treaty of 1790 is clearly founded on the right to use the 

 unsettled shores for the purpose of fishery, and to secure its continu- 

 ance. 



When the unsettled shore, although under the nominal sovereignty 

 of a civilized nation, is in fact possessed by independent, uncivilized 

 tribes, the right to exclude other nations from the use of the shores is 

 on a much less stable footing. 



* # . # # . # * # 



The following conclusions, from the premises laid down, are inev- 

 itable : 



1. That the right of the United States to the ocean fishery and in 

 the bays, arms of the sea, gulfs, and other inlets capable of being for- 

 tified, is perfect and entire. 



2. That the right of the ocean within a marine league of the shore, 

 where the approach cannot be injurious to the sovereign of the coun- 

 try — as it can not be on uninhabited regions, or such as are occupied 

 altogether by savages — is equally perfect. 



3. That the shores of such regions can be used as freely as the 

 waters : a right arising from the same principle. 



4. That a constant and uninterrupted use of the shores for the pur- 

 poses of a fishery, would give the right, perfect and entire, although 

 settlements on such shores should be subsequently formed or estab- 

 lished. 



# # # # # # * 



If regions, never occupied or brought under any positive jurisdiction, 

 without garrisons, or naval forces, or inhabitants, are to be occupied 

 and brought under civil or military rule, and those who have enjoyed 

 the privilege of a free fishery there are to be excluded from that privi- 

 lege, it is incumbent on the nation assuming such powers to give of- 

 ficial notice to the resident representatives or to the governments of all 

 nations with whom relations of amity are maintained, before any acts of 

 violence, in assertion of such sovereign rights, can be justified. A 

 warning to individuals is not enough, for that is not a general notice; 

 and individuals not warned may incur forfeitures and penalties with- 

 out any knowledge of their liabilities; and their governments, equally 

 ignorant, could take no [preventative] measures for their security. 



