year. In the British answer to this declaration it was denied that Great Britain had at any time acquiesced in the principles upon which the inviolability of the Baltic is maintained; however she might, at particular periods, have forborne, for special reasons influencing her conduct at the time, to act in contradiction to them. Such forbearance never could have applied but to a state of peace and real neutrality in the north; and she could not be expected to recur to it after France had been suffered, by the conquest of Prussia, to establish herself in full sovereignty along the whole coast from Dantzic to Lubeck. (a) specting the the seas. § 186. The controversy, how far the open sea or main Controocean, beyond the immediate vicinity of the coasts, may versy rebe appropriated by one nation to the exclusion of others, dominion of which once exercised the pens of the ablest and most learned European jurists, can hardly be considered open at this day. Grotius, in his treatise on the Law of Peace and War, hardly admits more than the possibility of appropriating the waters immediately contiguous, though he adduces a number of quotations from ancient authors, showing that a broader pretension has been sometimes sanctioned by usage and opinion. But he never intimates that any thing more than a limited portion could be thus claimed; and he uniformly speaks of "pars," or "portus maris," always confining his view to the effect of the neighboring land in giving a jurisdiction and property of this sort. (a) He had previously taken the lead in maintaining the common right of mankind to the free navigation, commerce, and fisheries of the Atlantic and Pacific Oceans, against the exclusive claims of Spain and Portugal, founded on the right of previous discovery, confirmed by possession and the papal grants. The treatise De Mare Libero. was published in 1609. The claim of sovereignty asserted by the kings of England over the British seas was supported by Albericus Gentilis in his Advocatio Hispanica in 1613. In 1635, Selden published his Mare Clausum, in which the general principles maintained by Grotius are called in question, and the claim of England more fully vindicated than by Gentilis. The first book of Selden's celebrated treatise is devoted to the proposition that the sea may be made property, which he attempts to show, not by reasoning, but by collecting a multitude of quotations from ancient authors, (a) Annual Register, xlix. State Papers, 773. in the style of Grotius, but with much less selection. He nowhere grapples with the arguments by which such a vague and extensive dominion is shown to be repugnant to the law of nations. And in the second part, which indeed is the main object of his work, he has recourse only to proofs of usage and of positive compact, in order to show that Great Britain is entitled to the sovereignty of what are called the Narrow Seas. Father Paul Sarpi, the celebrated historian of the Council of Trent, also wrote a vindication of the claim of the Republic of Venice to the sovereignty of the Adriatic. (b) Bynkershoek examined the general question, in the earliest of his published works, with the vigor and acumen which distinguish all his writings. He admits that certain portions of the sea may be susceptible of exclusive dominion, though he denies the claim of the English crown to the British seas, on the ground of the want of uninterrupted possession. He asserts that there was no instance, at the time when he wrote, in which the sea was subject to any particular sovereign, where the surrounding territory did not also belong to him. (c) Puffendorf lays it down, that in a narrow sea the dominion belongs to the sovereigns of the surrounding land, and is distributed, where there are several such sovereigns, according to the rules applicable to neighboring proprietors on a lake or river, supposing no compact has been made," as is pretended," he says, " by Great Britain;" but he expresses himself with a sort of indignation at the idea that the main ocean can ever be appropriated. (d) The authority of Vattel would be full and explicit to the same purpose, were it not weakened by the concession, that though the exclusive right of navigation or fishery in the sea cannot be claimed by one nation on (b) Paolo Sarpi, Del dominio del mare Adriatico e sui reggioni per il Jus Belli della Serenissima Rep. di Venezia, Venet. 1676, 12°. (c) De Dominio Maris, Opera Minora, Dissert. V., first published in 1702. "Nihil addo, quàm sententiæ nostræ hanc conjectionem: Oceanus, quà patet, totus imperio subjici non potest; pars potest, possunt et maria mediterranea, quotquot sunt, omnia. Nullum tamen mare mediterraneum, neque ulla pars Oceani ditione alicujus Principis tenetur, nisi' quà in continentis sit imperio. Pronunciamus MARE LIBERUM, quod non possidetur vel universum possideri nequit, CLAUSUM, quod post justam occupationem navi unà pluribusve olim possessum fuit, et si est in fatis, possidebitur posthac; nullum equidem nunc agnoscimus subditum, cùm non sufficiat id affectasse, quin vel aliquando occupasse et possedisse, nisi etiamnum duret possessio, quæ gentium hodie est nullibi; ita libertatem et imperium, quæ haud facile miscentur, unâ sede locamus." Ib. cap. vii. ad finem. (d) De Jure Naturæ et Gentium, lib. iv. cap. 5, § 7. the ground of immemorial use, nor lost to others by non-user, on the principle of prescription, yet it may be thus established where the non-user assumes the nature of a consent or tacit agreement, and thus becomes a title in favor of one nation against another. (e) § 187. On reviewing this celebrated controversy it may Review of be affirmed, that if those public jurists who have asserted the points. the exclusive right of property in any particular nation over portions of the sea, have failed in assigning sufficient grounds for such a claim, so also the arguments alleged by their opponents for the contrary opinion must often appear vague, futile, and inconclusive. There are only two decisive reasons applicable to the question. The first is physical and material, which alone would be sufficient; but when coupled with the second reason, which is purely moral, will be found conclusive of the whole controversy. I. Those things which are originally the common property of all mankind can only become the exclusive property of a particular individual or society of men, by means of possession. In order to establish the claim of a particular nation to a right of property in the sea, that nation must obtain and keep possession of it, which is impossible. II. In the second place, the sea is an element which belongs equally to all men, like the air. No nation, then, has the right to appropriate it, even though it might be physically possible to do so. It is thus demonstrated, that the sea cannot become the exclusive property of any nation. And, consequently, the use of the sea, for these purposes, remains open and common to all mankind. (a)113 (e) Droit des Gens, liv. i. ch. 23, §§ 279–286. As to the maritime police which may be exercised by any nation, on the high seas, for the punishment of offences committed on board its own vessels, or for the suppression of piracy and the African slave trade, vide suprà, §§ 106 et seq., and notes 83, 85, and 108. (a) Ortolan, Règles Internationales et Diplomatie de la Mer, tom. i. pp. 120-126. [113 National Appropriation of Open Seas. The right of one nation, or of several nations, to an exclusive jurisdiction over an open sea, was, as stated in the text, rested solely on a kind of prescription. But, however long acquiesced in, such an appropriation is inadmissible, in the nature of things; and, whatever may be the evidence of the time or nature of the use, it is set aside as a bad usage, which no evidence can make legal. Halleck says (Intern. Law, 135), "No one would think of reviving this controversy, which once occupied the pens of the ablest European jurists." And it We have already seen that, by the generally approved usage of nations, which forms the basis of international law, the maritime territory of every State extends: 1st. To the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea, inclosed by headlands belonging to the same State. 2dly. To the distance of a marine league, or as far as a cannonshot will reach from the shore, along all the coasts of the State. 3dly. To the straits and sounds, bounded on both sides of the territory of the same State, so narrow as to be commanded by cannon-shot from both shores, and communicating from one sea to another. (b), Ports, mouths of rivers, &c. § 188. The reasons which forbid the assertion of an exclusive proprietary right to the sea in general, will be found inapplicable to the particular portions of that element included in the above designations. 1. Thus, in respect to those portions of the sea which form the ports, harbors, bays, and mouths of rivers of any State where the tide ebbs and flows, its exclusive right of property, as well as sovereignty, in these waters, may well be maintained, consistently with both the reasons above mentioned, as applicable to the sea in general. The State possessing the adjacent territory, by which these waters are partially surrounded and inclosed, has that physical power of constantly acting upon them, and, at the same time, of excluding, at its pleasure, the action of any other State or person, which, as we have already seen, constitutes possession. These waters cannot be considered as having been intended by the Creator for the common use of all mankind, any more than the adjacent land, which has already been appropriated by a particular may be said to be now res adjudicata, that the only question is whether a given sea or sound is in fact, as a matter of politico-physical geography, within the exclusive jurisdiction of one nation. The claim of several nations, whose borders surround a large open sea, to combine and make it a mare clausum against the rest of the world, cannot be admitted. The making of such a claim to the Baltic was the infirmity of the position taken by the Armed Neutrality in 1780 and 1800, and in the Russian declaration of war against England in 1807. Ortolan, Règles Intern. i. 120-126. Kent's Comm. (Abdy's edit.) i. 110-112. Wildman's Intern. Law, i. 71. Heffter, Europ. Völker. § 75. De Cussy, Droit Marit. liv. i. tit. 2, § 39. Halleck's Intern. Law, 135. Woolsey's Introd. §§ 54-56. Manning, Law of Nations, 25. Rayneval, de la Liberté des Mers, ii. 1-108. Hautefeuille, Droits des Nat. Neutr. liv. i. tit. 1, ch. 1, § 4. Twee Gebroeders, Rob. iii. 336. Forty-nine casks of brandy, Hagg. iii. 290.]—D. (b) Vide suprà, §§ 177-181. people. Neither the material nor the moral obstacle, to the exercise of the exclusive rights of property and dominion, exists in this case. Consequently, the State within whose territorial limits these waters are included, has the right of excluding every other nation. from their use. The exercise of this right may be modified by compact, express or implied; but its existence is founded upon the mutual independence of nations, which entitles every State to judge for itself as to the manner in which the right is to be exercised, subject to the equal reciprocal rights of all other States to establish similar regulations, in respect to their own waters. (a) The ma § 189. 2. It may, perhaps, be thought that these considerations do not apply, with the same force, to those rine league. portions of the sea which wash the coasts of any particular State, within the. distance of a marine league, or as far as a cannon-shot will reach from the shore. The physical power of exercising an exclusive property and jurisdiction, and of excluding the action of other nations within these limits, exists to a certain degree; but the moral power may, perhaps, seem to extend no further than to exclude the action of other nations to the injury of the State by which this right is claimed. It is upon this ground that is founded the acknowledged immunity of a neutral State from the exercise of acts of hostility, by one belligerent power against another, within those limits. This claim has, however, been sometimes extended to exclude other nations from the innocent use of the waters washing the shores of a particular State, in peace and in war; as, for example, for the purpose of participating in the fishery, which is generally appropriated to the subjects of the State within that distance of the coasts. This exclusive claim is sanctioned both by usage and convention, and must be considered as forming a part of the positive law of nations. (a) § 190. 3. As to straits and sounds, bounded on both Straits sides by the territory of the same State, so narrow as to and sounds. be commanded by cannon-shot from both shores, and communicating from one sea to another, we have already seen that the territorial sovereignty may be limited, by the right of other nations (a) Vide suprà, § 95. (a) Martens, Précis du Droit des Gens Moderne de l'Europe, § 153. “Mais si loin de s'en emparer, il a une fois reconnu le droit commun des autres peuples d'y venir pêcher, il ne peut plus les en exclure; il a laissé cette pêche dans sa communion primitive, au moins à l'égard de ceux qui sont en possession d'en profiter." Vattel, Droit des Gens, liv. i. ch. 23, § 287. |