Galliani's work on the rights of neutrals.

in vain, to determine a matter not brought into question. On the other side, GEORGE JAMES LEICHERRI, his contemporary, has published a work, equally destitute of utility, entitled Commentatio de jure maritimo.

16. The Abbe GALLIANI, a Neapolitan, is the last of the writers on public law, who has treated of this subject; and he is the first, if I am not mistaken, to follow those principles of natural law, already laid down, in the preceding articles, I. and II. of this work, and to deduce from them, an inference which ought to be universally adopted.

17. This celebrated author, in his work, entitled Dei Doveri de' Principi de Neutrali, lib. 1, ch. 10, § 1. supposes five essential points of difference, between journeys by land, and voyages by sea. Reasoning on these differences, he thence concludes, with great clearness, that nations can occupy, and become the proprietors of the different regions of the earth, since it is in their power to secure this possession by defending the passes of mountains, and the mouths of rivers; the rest of the country, being naturally defended by rocks, valleys, rivers, forests, morasses, the borders of the ocean, and deserts. But not being able to surround, nor strictly to defend the open sea, since no solid work can be erected on that element, it is impossible to guard it, and consequently it is by nature incapable of being occupied. From opposite reasons, he concludes,

Arguments of Galliani.

that when the shores of a sea belong to a single nation, and inclose an expanse of water, large or small, which has no communication with the rest of the ocean, or communicates only by a narrow strait, this part of the sea may be lawfully possessed, since it may be occupied, inclosed, and defended. But when the parts of the shore, which encompass this sea, thus circumscribed, belong to different independent nations, it is obvious that there is no reason, nor pretext for the nation, who possesses the land forming the straits, or out-let of this sea, to refuse, a passage, and free navigation within, to unarmed vessels; because, as this nation receives no damage, loss or inconvenience, from the passage of vessels, it cannot reasonably refuse to others an enjoyment advantageous to them, and in no degree injurious to those who may wish to prevent it. (208) It appears, also, that the possessor of the shores, which form the mouth of the gulf, or inclosed sea, may, justly, insist on the right of visiting the ships that pass the strait; and, as a matter of wise precaution, may prohibit the passage of armed vessels, when, from their number, and other circumstances, there is room for distrust, or just ground of suspicion.

(208) Illud certum est etiam qui mare occupaverit navigationem impedire non posse inermem et innoxiam. Grotius, De jure belli ac pacis, lib. 2, cap. 3, § 12.

CHAPTER III.

OF THE EFFECTS OF THE EMPIRE OF

THE SEA.

ART. I.

Of Property in territorial Seas, and of their Dependencies

§ 1. WHEN a nation takes possession of an unoccupied country, it may justly be considered as having acquired, besides the property of the soil, the dominion and sovereignty. Being thus free and independent, its only aim will be to prevent every other nation from assuming the right of command, or exercising any acts of sovereignty whatever, within the space over which its empire extends, and which forms its territorial jurisdiction.*

2. A nation that occupies a part of the adjacent sea, has the sovereignty as well as the dominion of it, and enjoys there all those rights which appertain

* Vattel, lib. 1, ch. 18......T..

Property in the sea adjacent to the land.

to it on land, and which are given to it by the laws of the state.(217)

3. It follows from this fundamental principle, that the empire of the sea, according to the system established in the preceding chapter, is not to be regarded as a vain jurisdictional right, or as a mere honorary title, according to the exaggerated expression of GROTIUS ;(218) but has the real effects of every other kind of property. It differs in nothing from that of the land, and, consequently, gives us the entire disposal of the thing possessed, and the right of selling, exchanging, granting, and alienating it at pleasure;(219)* provided, that the possessor transfers no

(217) Quoniam partes maris occupati ad territorium illius gentis pertinent, quæ eas occupavit, quale jus Rector civitatis in suo territorio habet, tale etiam ipsi competit in partibus maris occupatis; et per consequens qui iis versantur, iisdem legibus subsunt, quam qui in terris habitant aut commorantur, etiam peregrini admissi. Wolfius, Jus. Nat. et Gen. cap. 5.....See Grotius, De jure belli ac pacis, lib. 2, cap. 3,

§ 8 and 13.

(218) Grotius, De jur. bel. ac pac. lib. 2, cap. 3, n. 13.

(219) Ferret, de re navali, tit.de nautica n. 1, et 23. Perigrin. Dejure fisci, lib. 8, n. 9 et sequ. Binkershoek, de Dom. Mar. cap. 4. Unum cundemque principem maris renuncio et vere dominium; simulque et hanc potestatem tribuo, qualem optimum maximam jurisconsulti solent adscriberi dominio. Itaque ut quisque rei suæ liber est moderator, et arbiter, ita dominus maris poterit id ipsum vendere, permutare donare, in solutum dare, aliisque modis ex animi sententia de eo sta

tuere.

See also Barbeyrac's note on Grotius, lib. 2, ch. 3, § 13, who agrees with Bynkershoek, in rejecting the distinction of Grotius, between jurisdiction and property, in regard to the sca......T.

Property in roads, bays, ports, straits, &c.

greater right than belongs to him; that is to say, that those who derive title from him, shall preserve their property no longer than while they continue in possession.(220.)

4. The occupation of a portion of the sea, draws after it that of the coasts, roads, ports, and adjacent islands. But if different nations possess lands along the shore of a strait, or gulf, the empire of each must extend to the middle of the water, at an equal distance from every part of their respective and opposite shores; unless they have agreed to enjoy that space of sea, in common, and undivided, and, by their united power, to protect their mutual rights against strangers.(221)

5. The same principle may be applied, with greater force, to the dominion of bays, straits, and har bours, as more susceptible of occupancy, and as involving more the security of a country. Besides, bays, and straits of small extent only, are here intended, and not those large arms of the sea, which are often denominated such; as Hudson's Bay, and the Straits of Magellan, over the whole of which, the right of empire, and much less, the right of property, cannot be claimed.

(220) Grotius, loc. cit. § 12. Gronovius, in commen.

(221) Puffendorf de jure nat. Mare Clausum, lib. 2, cap. 20. VOL. I.

et gent. lib. 4, ch. 5, § 8. Selden,

Ff