King of England, marked out along his coasts certain bounda ries, within which he declared that he would not suffer any of the powers at war to pursue their enemies, nor even allow their armed vessels to stop and observe the ships that should enter or sail out of the ports. These parts of the sea thus subject to a nation are comprehended in her territory, nor must any one navigate them without her consent. But to vessels that are not liable to suspicion, she cannot, without a breach of duty, refuse permission to approach for harmless purposes, since it is a duty incumbent on every proprietor to allow to strangers a free passage, even by land, when it may be done without damage or danger. It is true, that the state itself is sole judge of what is proper to be done in every particular case that occurs; and if it judges amiss, it is to blame; but the others are bound to submit. It is otherwise, however, in cases of necessity; as for instance, when a vessel is obliged to enter a road which belongs to you, in order to shelter herself from a tempest. In this case, the right of entering wherever we can, provided we cause no damage, or that we repair any damage done, is a remnant of the primitive freedom of which no man can be supposed to have divested himself; and the vessel may lawfully enter in spite of you, if you unjustly refuse her permission. It is not easy to determine to what distance a nation may extend its rights over the sea by which it is surrounded. Bodinus pretends, that according to the common right of all maritime nations, the prince's dominion extends to the distance of thirty leagues from the coast. But this exact determination can only be founded on a general consent of nations, which it would be difficult to prove. Each state may, on this head, make what regulations it pleases, so far as respects the transactions of the citizens with each other, or their concerns with the sovereign; but between nation and nation, all that can reasonably be said is, that in general the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it; since, on the one hand, she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she has need of it for some lawful end; and, on the other, it would be a vain and ridiculous pretension to claim a right which she were wholly unable to assert (1)." Azuni and other eminent authors consider that in the absence of express regulation on the subject between particular states, the natural dominion of the sea adjoin (1) Vattel, b. 1. c. 23, s. 289. ing any state is limited to the distance that a ball from a cannon, or a bomb from a mortar, fired from the shore, usually calculated as three miles, would reach. (1) It is however an established rule amongst nations, that where by the bending of the shores of a state, ports, harbours, gulphs, bays, and straights are formed, it should be supposed that a line is drawn from one of the most projecting points of the main land, or small islands near to it, to the other most projecting land of the same main land; and that the whole of the intermediate sea shall be considered as the territory of that state, although the middle thereof may much exceed three miles from the shore (2). But this rule, it is said, only applies to bays and straights of small extent, and not to those great tracts of sea, such as Hudson's Bay, and the Straights of Magellan, over which the empire cannot extend, and still less a right of property: but that a bay, whose entrance can be defended, may be possessed and rendered subject to the laws of the sovereign (3). So with respect to straights, when they serve as a communication between two seas, the navigation of which is common to all or several nations; the nation which possesses the straight cannot refuse the others a passage through it, provided that passage be innocent and attended with no danger to herself. By refusing it, without just reason, she would deprive those nations of an advantage granted them by nature, and indeed a right to them to such a passage, is a remnant of the primitive liberty enjoyed by all mankind: nothing but the care of his own safety can authorize the owner of the straight to make use of certain precautions, and to require certain formalities commonly established by the custom of nations. He has a right to levy a (1) Azuni, vol. 1. pp. 57-59. Vattel, b. 1. c. 23. s. 289. Marten's L. of N. 162. Ante, 92. n. 2. The author of the poem Du Droit Tanto s'avanza in mar questo dominio, (2) Azuni, vol. 1. p. 60. Vattel, b. 1. c. 23. s. 290. Marten's L. of N. 163. 168. (3) Vattel, b. 1. c. 23. s. 291. Marten's L. of N. 162. 171. moderate tax on the vessels that pass, partly on account of the inconvenience they give, by obliging him to be on his guard; partly as a return for the safety he procures them by protecting them from their enemies, by keeping pirates at a distance, and by defraying the expense attendant on the support of lighthouses, sea marks, and other things necessary to the safety of mariners. Thus the king of Denmark requires a custom at the streights of the Sound: such right ought to be founded on the same reasons, and subject to the same rules, as tolls established on lands, or on a river (1). Seas. Those parts of the seas which encompass the four sides of the Of the British British islands, and are therefore known by the name of the British seas, have long been under her actual control, and within the jurisdiction of her government, and as such are particularly recognized by the laws of England (2). This right has been recognized in the most solemn manner in repeated treaties by some foreign nations, and the acts of concession and acknowledgment which proved its being admitted, have been generally continued without interruption until of late times, when the practice of requiring them has been discontinued (3). The four seas over which Great Britain claims dominion, are denominated from the cardinal points of the compass. Toward the East is the German Ocean generally called the North, but by the Danes, Swedes, and other northen regions named the West Sea, and the boundaries on this side are the shores of those countries opposite to Great Britain that way, as the Netherlands, Germany, Denmark, and Norway. Southward is the British Ocean, so called by Ptolemy, one part of which is commonly denominated the Channel, or by the French La Manche, which divides England from France. This way the boundaries extend to the opposite shores of France (4), to those of Spain as far as Cape Finisterre, and to an imaginary line drawn from that Cape in the same parallel of latitude to their (1) Vattel, b. 1. c. 23. s. 292. (2) As to the British seas in general, see Selden's Mare Clausum, b. 2. c. 1. p. 182. Molloy, b. 1. c. 5. s. 10. Postl. Dict. tit. Sea, British. Vattel, b. 1. c. 23. s. 289. Marten's L. of N. 164. Schultes on Aquatic Rights, 9, 10. Azuni, vol. 1. pp. 53-55. Berkley's Naval Hist. P. 442. Com. Dig. tit. Navigation, A. and tit. Prerogative, B. 1. 1 Rol. Ab. 528. 1. 15. 3 Leon. 73. Co. Lit. (3) Id. ibid. 2 Adolphus, 195. boundary on the West, thus taking in that part of the British seas which consists of the Channel, the Bay of Biscay, and part of the Atlantic Ocean. On the West is that sea anciently called the Virgivian Ocean, which, where it washes the coast of Scotland, is from thence called Deucaledonian Sea; that part of it which flows between England and Ireland, is sometimes called the Irish Sea, anciently the Scythian Vale, but now Saint George's Channel; and the rest the Western Atlantic Ocean. Northward is the sea anciently known by the several names of Hyperborean, Deucaledonian, and Caledonian Ocean, now the Scotch sea, in which are situated the Orcades, Thule, and other islands. The proper boundaries of the British seas for the west and north on those quarters are generally reckoned a line drawn from the before-mentioned imaginary line, extending from the Cape Finisterre in the longitude of twenty-three degrees west from London, to the latitude of sixty-three degrees, and thence another line drawn in that parallel of latitude to the middle point of land called Van Staten in Norway, thereby taking in to the west that portion of them which consists of part of the Atlantic Ocean and the Irish Sea, or Saint George's Channel (1). The sovereignty or dominion of the British seas, consists in an exclusive property over them, as well with regard to passage as to fishing. The recognition of this sovereignty consisted in what was termed the duty of the flag, which was, that all ships or vessels met by British men of war on those seas do strike their flag and lower their topsail, or where they have no flag, that they lower their topsail only, in deference to his majesty's sovereignty, and an implied acknowledgment, that the prince grants a general licence for the ships of his friends to pass in those seas, paying him that duty. (2) The effects of dominion over the sea in general. The effects of dominion over the sea, when legally asserted, are many and beneficial: amongst the principal are, 1st, The exclusive right of fishing in such sea, and to all the produce of it, whether ordinary or accidental, as far as relates to things unclaimed by any other lawful proprietor. 2dly, The right to forbid or restrain the navigation of foreigners therein, and their entry into (1) Selden's Mare Clausum, b. 2. c. 1. p. 182. Molloy, b. 1. 5. s. 10. Postl. Dic. tit. Sea, British. C. Molloy, b. 1. c. 5. s. 11; and see form of letters of instructions to officers to claim the duty of the flag. Postl. Dic. tit. Sea, (2) See authorities ante, 101. n. 2. British. his ports, unless declared free ports by treaty or usage,-a right of exclusion, however, which is seldom exercised in times of peace. 3dly, The right to impose duties, tonnage, &c.; fees of entry, of clearance, &c.; and to institute tolls for the benefit of his navigation. 4thly, The regular execution of justice, for protecting the innocent and punishing the guilty for all crimes committed within the extent of such sea dominion. 5thly, The right to demand of all foreign ships within those seas to strike the flag and lower the top-sail, or perform other customary maritime honours, to ships of war or others bearing the colours of the sovereign of such seas. (1) incident to The rights of pre-emption, and of establishing staples, and of pre-emption of imposing tolls and other charges upon the commerce of and other rights foreigners, are of considerable importance, and are incidents to dominion of the the right to refuse free passage. The right of pre-emption is the seas. right of a nation to detain the merchandize of strangers passing through her territories or seas, in order to afford to her own subjects the preference of purchase (2). The right of staple, as exercised by a people upon foreign merchants, is defined (3) to be, that they may not allow them to set their merchandizes and wares to sale but in a certain place. This place is usually some port where the king's staple is established, where all goods may be rated, and whence they may be exported; staple signifying a heap, in allusion to those collections of various merchandizes which are crowded together in one port. The word is derived from the German, stapulen, which signifies to put into a heap or pile (4). With respect to the rights of pre-emption and staple, it seems clear that no such claims can in any case be justly founded, unless the state asserting them be entitled to refuse the freedom of passage. If this passage be a favour and not a right, then, according to the foregoing principles, these or any other reasonable conditions may, in natural justice, be imposed upon the allowance of that favour; if it be a right and not a favour, then the imposition of a condition is as gross an injury (1) Marten's L. of N. 168, 9. 172-175. Molloy, b. 1. c. 5. s. 13. Postl. Dic. tit. Sea, British. Com. Dig. Navigation, A. (2) In England, formerly, the king exercised such a power. 1 Bla. Com. 287. (3) Barbeyrac; and see 1 Bla. Com. 314. (4) Puff. b. 3. c. 3. p. 29, in notes. Jacob's Dic. tit. Staple. See Macpherson's Ann. Com. vol. 4. Index, tit. Staple. |