each. Foreign officers, whether civil, military, or naval, when invited to visit a military post or national vessel, are to be saluted according to their rank, and to receive the same honours as officers of the United States, of the rank which corresponds. Thus, a foreign sovereign prince receives the same honours as the President of the United States; foreign ambassadors and ministers, the same as American envoys of corresponding rank to foreign Courts, etc. Foreign ships of war, entering American ports, are saluted from fortifications in return for a similar compliment, gun for gun on notice being officially received of such intended salute. It is usual to agree beforehand what number of guns are to be fired, and it is directed that in no case shall the compliment exceed the national salute. Similar rules are established for the navy of the United States with respect to salutes to be given to their own and foreign officers. American ships of war, on visiting foreign ports, salute fortifications on receiving notice that the compliment will be returned gun for gun. Their ships salute each other and foreign ships, according to the rank of their respective commanders.' 1 U. S. Army Regulations; U. S. Navy Regulations. By chapter iv. of Regulations for the Navy of the U.S., 1876, it is ordered that a foreign sovereign, or the chief magistrate of any foreign republic, when visiting a vessel of the navy, shall be received with the honours prescribed for the President, except that the flag of his country shall be displayed at the main, and the band shall play his national air. Members of a royal family, when visiting a vessel of the navy, shall receive the same honours as would be paid to their sovereign, except that one salute only shall be fired on leaving. In addition to the foregoing, yards may be manned for the President of the United States, a foreign sovereign or chief magistrate, and for members of a royal family. By chap. iv. sect. ii. of the same regulations, whenever a minister appointed to represent the United States abroad, or a minister of a foreign country, shall visit a vessel of the navy, he shall be received by the admiral, commodore, or commanding officer, and the marine guard shall be paraded. A salute of fifteen guns shall be fired on his leaving. A chargé d'affaires, or commissioner, shall be received in the same manner, but the salute shall be eleven guns. A consul general shall be received by the commanding officer, and saluted with nine guns. A consul shall be received by the commanding officer, and saluted with seven guns. A vice-consul or a commercial agent shall be received by the commanding officer, and saluted with five guns. It is illegal, by the ancient usage of England, for any private ship to make use of the ensign or other flags of the Royal Navy. On the union with Ireland, 1801, a certain ensign was appointed to be used by all merchantmen in the United Kingdom, and no ensign or flag of the Royal § 28. These rules, however just and proper in themselves, sometimes give rise to serious questions in their application to particular cases. Thus, should a commodore, or flag-officer, who is the highest officer in the United States' navy, receive the same honours as a British or French admiral, who has the same command, or only such as are due to a British or French commodore, who, although enjoying the same title, has an inferior command, and is, in fact, of inferior rank? Again, is a general of the highest rank in the United States' army to receive the same honours as a British or French marshal, or only those of an inferior officer, who has the same title of general? Again, if a foreign sovereign prince should visit an American ship of war in one of his own ports, should he receive only the honours which such ship pays to the President of the United States, or the honours, perhaps much higher, which would be due to him from one of his own ships? Such questions, although relating to mere matters of etiquette and ceremony, are sometimes of considerable importance, as Navy was to be employed by them without special permission. See 'The Minerva,' 3 Rob. 34; R. v. Miller, 1 Hagg. R. 197; and R. v. Benson, 3 Ibid. 96, which reports that in 1833 a master of a British merchantman was condemned in the penalty of 50l. and costs for wearing a red pendant at the main peak. The pendant was seized by an officer from a British man-of-war, who came on board for that purpose. It is enacted by 17 and 18 Vict. c. 104, s. 105, that if any colours usually worn by Her Majesty's ships, or any colours resembling those of Her Majesty, or any distinctive national colours, except the red ensign usually worn by merchant ships, or except the union jack with a white border, or if the pendant usually carried by Her Majesty's ships, or any pendant in any wise resembling such pendant, are, or is, hoisted on board any ship or boat belonging to any subject of Her Majesty without warrant for so doing from Her Majesty, or from the Admiralty, the master of such ship or boat, or the owner thereof if on board the same, and every other person hoisting, or joining, or assisting in hoisting the same, shall for every such offence incur a penalty not exceeding 500l., and it shall be lawful for any officer on full pay in the military or naval service of Her Majesty, or any British officer of the Customs, or any British Consular officer to board any such ship or boat and to take away any such jack colours or pendant, and such jack colours or pendant shall be forfeited to Her Majesty.' Sir H. Jenner said (Evidence before Select Committee of House of Commons on Admiralty Courts, p. 35) that the offence of wearing illegal colours was within the jurisdiction of the Court of Admiralty, but that in case of a fair ground of excuse or palliation the penalty was not sued for. But it is questionable whether the penalty, if sued for under the above statute, should not be enforced by the Attorney General, and in the Courts of Common Law. It may be here mentioned, that the common supposition that the national colour of Ireland is green, is a mistake. Ever since the introduction of the English rule in that country, the field of the national arms, (and therefore the national colour), has been blue; before that time, it does not appear that there was any general national colour. promoting or disturbing relations of friendship. Where not arranged by some international agreement, they should be settled in each case by a mutual understanding, entered into beforehand, between the immediate parties who give and receive the salutes; and where no such agreement can be made, it is proper to abstain from all salutes, visits, and ceremonies. A dispute of this kind, with respect to relative rank, occurred in the anchorage of Sacraficios, Mexico, between Vice-Admiral Baudin, commanding the French ship 'La Néréide,' and Commodore Shubrick, commanding the American sloop 'Macedonian.' A similar difficulty, with respect to salutes, occurred at Toulon, in 1830, between Vice-Admiral de Rigny, commanding the French ship 'Le Conquérant,' and the captain of an English frigate.1 § 29. It is hardly probable that different nations will ever assign the same names or grades to the officers of the same command, either upon land or in their respective naval forces. Difficult and embarrassing questions of rank and precedence will, therefore, necessarily arise, whenever they meet upon the high seas or in foreign ports. In the matter of salutes it would be easy to avoid any question of this kind, by considering all salutes as international, instead of personal, to the officer, according to his rank, such salutes being always returned gun for gun, as is now the practice between ships and forts. If the salute were considered as given to the flag borne by the ship instead of the officer commanding it, the salutes would necessarily be equal, and always the same, as the flag represents the State to which it belongs, and all sovereign and independent States are now considered, in international law, of equal dignity, in matters of ceremony. A similar rule might be applied to military salutes given to foreign officers on land, each officer entitled to a salute being considered as representing the dignity of his State, whatever might be the name or rank conferred upon him by such State. The question of time as to which should salute first, would then be governed by the rules already established with respect to vessels of equal rank 2 1 Blanchard et Dauzats, Relation de l'Expédition F. au Mexique, pp. 583-585; Reports of the Sec. of the Navy, Cong. Doc. 1841, etc. Kluber, Droit des Gens, § 121; Nau, Völkerseerecht, § 143; Heffter, Droit International, § 197; Ortolan, Diplomatie de la Mer, liv. ii. ch. xv.; Décret du 15 Août, 1851, art. 749. See suprà, §§ 19, 23. I24 CHAPTER VI. RIGHTS OF PROPERTY AND OF DOMAIN. 1. Divisions of the sovereign powers of the State-2. Prerogatives of the sovereign-3. Jura majestatis and regalia-4. Property and domain of State-5. Right of eminent domain-6. Right of a State to own property-7. Modes of acquiring property-8. Right of disposition of territory-9. Inhabitants of transferred territory-10. Examples of alienation by sale-11. By mortgage-12. By deeds of gift and bequest-13. Extent of maritime territory-14. Extent of the terms 'coasts' and 'shores'-15. Ownership of islands-16. Principle of the king's chambers-17. Difficulties in its application-18. Claims to contiguous portions of the sea-19. Danish sound dues-20. Questions of mare clausum, and mare liberum -21. Black Sea, how far a mare clausum-22. The great lakes and their outlets-23. Navigable rivers within or bounding on a State-24. Changes in rivers or lakes dividing States-25. Effect of such changes on boundaries-26. Navigable rivers passing through several States-27. Incidental use of their banks-28. Right of innocent passage-29. This right may be modified by compact-30. Navigation of the Rhine-31. Of other European rivers-32. Navigation of the Mississippi-33. Of the St. Lawrence. § 1. BEFORE proceeding to discuss the rights of property and domain, it may be proper to define what is understood by the property and domain of a State, as distinguished from the rights of sovereignty, and the powers and prerogatives of the sovereign or ruler. As remarked in a preceding chapter, the sovereignty of a State is the collection of the wills and powers of all the individual members of which the State is composed. According to Grotius, Puffendorf, and more modern text-writers, this power has two subjects,-common and proper, the former being the State itself or the community which constitutes the State, and the latter the person or persons in whom, by the organic laws, the power is vested; the former, being the source, is one and indivisible, while the latter may be one or many, and is frequently divided into legislative, executive, and judicial, each branch or division being separate and distinct, and sometimes entirely independent. The sovereignty of a State, is, therefore, its public power or authority, and the sovereign is the person, or body of persons, who are invested with that power or authority. If that power or authority remains in the community, the common and proper subjects are one and the same, and the government is a democracy; if vested in a number of individuals, it is an aristocracy; if in a single person, it is a monarchy. These simple forms are modified and varied, according to the organic laws of each State.' § 2. The term prerogative is frequently used to express the uncontrolled will of the sovereign power in the State. It is applied not only to the king, but also to the legislative and judicial branches of a government, as the 'royal prerogatives,' the 'prerogatives of parliament,' the 'prerogatives of the Court,' &c. Rutherforth says, prerogative simply means a power or will which is discretionary, and above and uncontrolled by any other will, and that, if this power be limited in any respect, so far the prerogative is at an end. In speaking of the royal prerogative, Blackstone says: 'It signifies, in its etymology (from prae and rogo), something that is required or demanded before or in preference to all others. And hence it follows that it must be in its nature singular or eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, and in contradistinction to all others, and not to those which he enjoys in common with his subjects; for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. And, therefore, Finch lays down as a maxim, that the prerogative is that law, in case of the king, which is law in no case of the subject.'" 1 Grotius, de Jur. Bel. ac Pac., lib. i. cap. iii. §§ 6, 7, 17; Puffendorf, de Fur. Nat. et Gent., lib. vii. cap. ii. § 20; cap. iv. § 1; cap. v. § 1; Bowyer, Universal Pub. Law, pp. 210-216; Vattel, Droit des Gens, liv. i. ch. i. §§ 1, 3; Garden, De la Diplomatie, tome i. pp. 106, 110; Martens, Précis du Droit des Gens, § 23; Rayneval, Institutions du Droit, tome i. p. 44 ; Ortolan, Diplomatie de la Mer, tome i. pp. 11, 12; Wheaton, Elem. Int. Law, pt. i. ch. ii. § 5; Ortolan, Domaine International, pp. 16 et seq.; Heffter, Droit International, §§ 16-25; Burlamaqui, Droit de la Nat. et des Gens, tome iv. pt. ii. ch. v. ; Merlin, Répertoire, verb. 'souveraineté '; Proudhon et Dumay, Domaine Public, tome i. ch. vii. 2 Finch further says (L. 84, 85): The King has a prerogative in all things that are not injurious to the subject; for in them all it must be remembered that the King's prerogative stretcheth not to the doing of any wrong.' Bracton says (1. iii. t. i. c. ix.) : 'Nihil enim aliud potest rex, nisi id solum quod de jure potest.' One of the prerogatives of the King is sovereignty, and, therefore, no suit can be brought against him; yet in England, any person, who has a just demand in point of property against the King, may ask it |