It is said that the government is prevented from discharging this obvious duty, because the sea is free; that no nation can undertake to close the ocean against the ships of any other nation, nor to exercise over them, beyond three miles from the coast, any paramount jurisdiction. This general proposition will not be questioned. The Secretary of State, in his correspondence with the British government on this subject, has undertaken to maintain that these waters are not, as between that country and the United States, a part of the high or open sea; that by the former treaty between Great Britain and Russia, a right of jurisdiction over them was reserved to the latter country, and was conceded and acquiesced in by the former; and that the same right was virtually set forth in the treaty of 1824 between Russia and the United States. The British government, while denying this conclusion, admits that whatever right of this sort Russia had under that treaty as against Great Britain passed to the United States when they purchased from Russia the territory to which it attached. It is not proposed in these observations, nor would it be within their limit, to attempt to restate the argument of Mr. Blaine on this point. It is presented with great ability, fulness, and clearness, and there seems to be nothing left to be added in either particular. It depends principally upon historical evidence, which must be closely examined to be understood; and that evidence certainly tends very strongly to support the result that is claimed by the Secretary. If in this position he is right, it is the end of the case. Because it brings these waters, as against Great Britain at least, within the territorial jurisdiction of the United States, not by their geo

graphical situation alone, but by the virtual provisions of the treaties among the high contracting powers concerned.

But suppose that upon this question Mr. Blaine is wrong and Lord Salisbury is right, and that the waters between the mainland and the Pribyloff Islands outside the three-mile limit are to be regarded as a part of the open sea. In what does the freedom of the sea consist? What is the use of it that individual enterprise is authorized to make, under that international law which is only the common consent of civilization? Is it the legitimate pursuit of its own business, or the wanton destruction of the valuable interests of nations? If the government of the United States is restrained by any principle of law from protecting itself and its citizens against this great loss, it must be because the Canadian ship-owners have a right to inflict it. That is to say, that these acts, prohibited by American law, unlawful to Canadians wherever territorial jurisdiction exists, which would be speedily made unlawful within their own territory if any seals existed there, and which are wanton and destructive everywhere, become lawful and right if done in the open sea, and are therefore a proper incident to the freedom of the sea. The clear statement of this proposition refutes it, in the minds of all who are capable of a sense of justice, and able to discriminate between right and wrong. The freedom of the sea is the right to pass and repass upon it without hinderance or molestation, in the pursuit of all honest business and pleasure, and it extends no further. It never authorizes injury to the property or just rights of others, which are as sacred at sea as on shore. This colony of seals, mak

ing their home on American soil and unable to exist without a home upon some soil, belong to the proprietors of the soil, and are a part of their property; and do not lose this quality by passing from one part of the territory to another, in a regular and periodical migration necessary to their life, even though in making it they pass temporarily through water that is more than three miles from land.

It is true that among the unquestionable rights of mankind in the open sea is that of fishing. The fish that live in the sea are common property, attached to no territory and belonging to no jurisdiction until they happen to wander into it, and then only while they remain there. But the seal is in no sense a fish. As has been pointed out, it does not remain in the sea, but has a habitual abiding-place upon the land, to which it regularly resorts, and where it may be said to belong. But even in the pursuit of fishing in the open sea, let us suppose that the people of one country should invent a method so wasteful and so destructive as necessarily to result in the speedy extermination of all fish, and should propose to practise that method of fishing in waters adjacent to the territories of another nation, though three miles from land, to the certain ruin of its established industry and of one of its important means of sustenance and of revenue. Would that nation and others interested in the preservation of fish be compelled to stand helplessly by and permit such an outrage to be accomplished? Must all nations lose their share in the common stock, and the world be deprived of its benefit, because no one of them has a right to close up or control the open sea? Or would it be likely to be discovered that

rights on the sea, like all rights recognized by civilized law, must be exercised with a due regard to the rights of others; and that the common right of free fishing did not include the right of wanton and barbarous destruction of all fishery? Doubtless in that case as in this, some lawyers would be prepared to demonstrate that, much as the calamity might be deplored, there was really no precedent to be found in the books for any interference to prevent it, because no such wrong had ever been attempted before, and to point out that to proceed without a precedent would be to set all jurisprudence at naught. Precedents illustrate principles, but do not create them. They are only valuable so far as they display the application of principles to new cases. They do not arise out of rights, but out of attempted wrongs. A right cannot obtain the sanction of a precedent until it is invaded. And an invasion of a right is not without redress, though it may never have been invaded in the same way before. There must always be a first case, but not necessarily therefore a remediless case. When the case arises that justifies a precedent, the occasion for making it should be availed of, for the sake of the law, as well as for the sake of the right.

When the extent to which the sea may be used, and the purposes for which its pathless highway may be employed, are considered in the light of the rules that have been established by the general consent of mankind, it will be seen that the freedom of the sea is largely a figure of speech. It is not free, it has never been free, for any purpose whatever, injurious to the rights, the property, or the honor of a nation able to defend itself, or even to those interests of a

nation which are paramount in importance to the mere profit to be made out of an otherwise lawful act that endangers them. Rights upon the sea are more restricted by considerations of that sort than any other rights that are enjoyed by mankind. And the rights of self-defence there are broader, and are measured by a more arbitrary standard. Of the occasion, the necessity, and the extent of self-defence, every nation must judge for itself, since there is no common tribunal to appeal to, and no redress to be obtained except such as it shows itself able and determined to exact. The restraint upon it, in so doing, is found in the general opinion of the world, guided by admitted principles and established usages. Were it desired to extend these observations into a treatise upon the freedom of the sea, it would not be difficult to show how numerous are the restrictions to which that right has been subjected, and in how wide an analogy the necessity on which they stand finds illustration. The concession to every country bordering upon the sea of a certain authority over so much of it as is comprehended within three miles of the coast is but an instance of such a restriction. The sea within that line is no part of the territory of a nation. All ships have a right to pass and repass there, and the government cannot exclude them, yet in all business done within that limit they are subject to such reasonable regulations and conditions as the government thinks proper to impose. The slave-trade between Africa and countries where slavery was legal was once a legitimate commerce, to which the sea was open. When considerations of humanity and wiser policy united to discountenance that traffic, the sea was closed to it. When