第20章 TERRITORIAL RIGHTS OF SOVEREIGNTY.(3)

MrWEHallin a very interesting chapter of his volume (Part ii2),has shown that International Lawin the modern sense of the wordsbeganin a general system of mare clausumthe Adriaticthe Gulf of GenoatheNorth Seaand the Balticwere all closed and were under authorityandEngland claimed to have precedence and to exercise jurisdiction of variouskinds from the North Sea and the parts of the Atlantic adjoining Scotlandand Ireland southwards to the Bay of BiscayIn all these waters the omissionto lower the flag to a British ship would have been followed by a cannonshotThenceforward the progress of maritime jurisdiction was reversed --from mare clausum to mare liberumAnd the Sovereignty allowed by InternationalLaw over portions of the sea is in fact a decayed and contracted remnantof the authority once allowed to particular states over a great part of theknown sea and ocean.

The causes which threw open a large number of maria clausa are not obscure.

In the first place there was the opinion of some of the most respected andauthoritative of the founders of International LawFor examplethe strongopinion of Grotiusperhaps the most reverenced of all these writersthatthe proper doctrine was that of the mare liberumNextand more especially,this opening of seas was brought about by the discovery of America and thepassage round the Cape of Good HopeThe repugnance of the most adventurousstates to the extravagant pretensions of Spain and Portugal was quickenedand stimulated by the knowledgethat their title was founded in the mainon a partition of the eastern and western oceans by an authority which thenew maritime nationsthe Dutch and the Englishno longer reverenced --the PopeThus the widely prevailing exclusive maritime Sovereignty of earlydays declinedThe English claims dwindled to claims over territorial waterclose to the coastand over portions of the sea interposed between promontoryand promontory known as the King's Chambersand over the whole of the narrowseas for ceremonial purposesthese last claims were once so serious thateven Philip II of Spain was fired into by an English captain for flying hisflag when he came into the narrow seas tor the purpose of marrying our QueenMary.

The language of the ordinance of Hastingsattributed to lying Johnwaseven much stronger:

'If a lieutenant of the lying do encounter upon the sea any ships or vessels,laden or unladenthat will not strike or veil their bonets at the commandmentof the lieutenant of the lyinghe will fight against them of the fleet;if they be taken they be reported as enemiesand their ships and goods takenand forfeited as the goods of enemies.'

I have already spoken of the doubts entertained by English judgesandexpressed in the 'Franconiacaseas to that jurisdiction over three milesor a league which is said to exist over territorial watersIf those opinionsbe examinedit will seem that the doubts chiefly rest on the fluctuationsand differences of view as to the exact extent of territorial water whichmay be claimed under the general rule of International LawIn some casesthe claim is identical with that of the international writers to Sovereigntyfor three miles over the water next adjoining the shoresIn other casesthe claim is largerIt is easy to understand these differences if we bringhome to our minds that what took place was a renunciation of indefinite fordefinite claimsentailing generally a contraction of the extent of sea assertedto be within a given jurisdiction.

Another survival of larger pretensions is the English claim to exclusiveauthority over what were called the King's ChambersThese are portions ofthe sea cut off by lines drawn from one promontory of our coasts to another,as from the Land's End to Milford HavenThe claim has been followed in America,and a jurisdiction of the like kind is asserted by the United States overDelaware Bay and other estuaries which enter into portions of their territory.

A more indefinite claim was advanced by British sovereigns to a larger extentof the water by the prohibition which they issued against the roving or,as the technical word wasthe hovering of foreign ships of war near theneutral coasts and harbours of Great BritainIn more recent times what wasknown as the 'Hovering Actwas passedin 1736and this assumes for certainrevenue purposes a jurisdiction of four leagues from the coast by prohibitingforeign goods to be transhipped within that distance without payment of duties.

The United States here again have copied this provisionand in either countrythe statutory legislation has been declared by the courts of justice to beconsistent with the law and usage of nationsThe once extensive but nowgreatly diminished claims of Great Britain have not been exclusively of advantageto herWe have a trace of the amplitude of the old claim in the necessitywhich Great Britain has submitted to of great expenditure on the costly dutyof lighting by lighthouses and in other ways a much larger extent of seawaythan is clearly under her jurisdiction.