further pursuit of this question. Secondly, supposing that question determined against the immunity of the place of capture, another question is proposed, whether the belligerent party having passed over neutral territory, animo capiendi, to the place where his rights have been exercised, those rights of capture so exercised are not thereby invalidated? The capture is represented on both sides to have been made in the Watt, which runs along the coast of Groningen, by two or three of his Majesty's ships that went up the Eems. It is not, I think, contended that the capturing ships were stationed on the neutral territory, unless the whole of the Watt passage is to be so considered. The precise place where the capturing ships lay is not very distinctly marked; but the balance of evidence inclines to establish that they were on the other side of a line of buoys, which Captain M'Kenzie swears were considered as being on Dutch territory, and that he placed his ship as near as possible in the place where some Dutch armed vessels (which were driven away on his approach) were stationed. On the whole that is to be collected from the evidence as to the exact spot, I am led to suppose that the ships were not stationed on neutral territory, unless the whole of the Watt passage is to be so considered. It is scarcely necessary to observe that a claim of territory is of a most sacred nature. In ordinary cases, where the place of capture is admitted, it proves itself; the facts happen within acknowledged and notorious limits, no inquiry is either required or permitted. But otherwise when it happens in places which the neutral country does not possess by any general principle or by any acknowledged right; in such a case, it being contended by those who

represent the belligerent state, that no right exists, and that, therefore, the capture is free and legal, it can never be deemed an act of disrespect on the part of the foreign tribunal, if it proceeds to inquire into the fact of territorial rights-certainly not with a view of deciding generally upon such rights, but merely with respect to this particular fact of capture-not for the purpose of shaking or invalidating such rights, but that it may enforce a legal observance of them, if the facts on which they depend are competently established. Something has been said in argument of the reverence due to the assertion of princes whose claim is advanced; and this court is disposed to pay the fullest measures of reverence which the case will allow. It is not improper to remark, that it is a question discussed much at length by foreign writers on general law, in what cases the sole assertion of princes is to be taken as conclusive legal proof; and no principle is more universally established among them, than that the mere assertion is not to be received as full and complete proof, or, as Farrinacius expresses it, assertioni principis non statur quando agitur de propriá ipsius principis, vel de ejus commodo aut intercesse, and indeed a contrary rule would carry the reverence due to these august personages to an extravagance that derided all reason and justice. Strictly speaking, the nature of the claim brought forward on this occasion is against the general inclination of the law; for it is a claim of private and exclusive property, on a subject where a general, or at least a common use is to be presumed. It is a claim which can only arise on portions of the sea, or on rivers flowing through different states: the law of rivers flowing entirely through the

provinces of one state is perfectly clear. In the sea, out of the reach of cannon shot, universal use is presumed; in rivers flowing through conterminous states, a common use to the different states is presumed. Yet, in both of these there may, by legal possibility, exist a peculiar property, excluding the universal or the common use. Portions of the sea are prescribed for; so are rivers flowing through contiguous states; the banks on one side may have been first settled, by which the possession and property may have been acquired, or cessions may have taken place upon conquests or other events. But the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established on the part of those claiming under it, in the same manner as all other legal demands are to be substantiated by clear and competent evidence.

"The usual manner of establishing such a claim is either by the express recorded acknowledgment of the conterminous states or by an ancient exercise of executive jurisdiction, founded presumptively on an admission of prior settlement or of subsequent cession. One hardly sees a third species of evidence unless it be, what this case professes to exhibit, the decision of some common superior in the case of a contested river. The sea admits of no common sovereign; but it may happen that conterminous states through which a river flows, may acknowledge a common paramount sovereign, who in virtue of his political relation to them may be qualified to appropriate exclusively and authoritatively, the rights of territory over such river to one or other of them." Lord Stowell, after observing upon the natural quality and position of

the place, adds "there being no evidence of acquisition, no proof of cession, and no direct authority to be derived from the terms of the grant, the whole question is again reduced to usage. If that is proved it is certainly evidence of the most favoured kind. All men have a common interest in maintaining the sanctity of ancient possession, however acquired; ancient landmarks and ancient seamarks are res sacerrimæ, and whoever moves them piaculum esto. Then what is the natural evidence to be expected of ancient and constant usage? and how much of this has been produced? How is ancient jurisdiction proved on such a subject? By formal acts of authority, by holding courts of conservancy of the navigation, by ceremonious processions to ascertain the boundaries, in the nature of perambulations, by marked distinctions in maps and charts prepared under public inspection and control, by levying of tolls, by exclusive fisheries, by permanent and visible emblems of power there established, by the appointment of officers specially designated to that station, by stationary guard-ships, by records and muniments, showing that the right had always been asserted, and, whenever resisted, asserted with effect. This is the natural evidence to be looked for generally and such as it is more particularly reasonable to require, where a right is claimed against all general principles, and also against the natural rights and limits, and, indeed, against the independence and security of neighbouring states. On this evidence then it is impossible for me to pronounce that these captures are invalidated by being actually made on Prussian territory. There remains the other question, whether they are not vitiated, by the capturing

ship having passed over neutral territory, to accomplish the capture? as it is alleged they passed up the Western Eems and that the whole of that is Prussian territory. I have already intimated some doubts that might possibly have been entertained upon the present evidence, whether the Western Eems is to be deemed at all times and at all parts of it clearly Prussian territory; but supposing it to be so, is it a violation of territory to have committed an act of capture, after having passed over this territory to effect it? On this point there are some observations of law and some of fact that appear not unworthy of notice. In the first place, the place of capture is accessible by other passages, not asserted to be neutral; it is not alleged that a hostile force might not have reached these ships by another route, through the Lower Zee or other communications. It is not said that they were so inclosed and protected on all sides by neutral territory, that you could not approach them without passing over it. In the next place, it is not the case of an internal passage into the heart of the country— into the Homegat-if I may adopt their own term; it is a passage over an external portion of water, which you may prescribe for as territory, but not as inland river or as part of the internal territory; it is not the entrance of an armed force, up an inward passage to reach an enemy lying in the interior of the land. Thirdly, it is an observation of law, that the passage of ships over territorial portions of the sea or external water is a thing less guarded than the passage of armies over land, and for obvious reasons. An army in the strictest state of discipline can hardly pass into a country without great inconvenience to the inhabi

I