Grotius, II. c. 2, § 3—Pufendorf, IV. c. 5, § 5—Vattel, I. §§ 279-286—Hall, § 40—Westlake, I. pp. 161-162—Phillimore, I. §§ 172-179—Taylor, §§ 242-246—Walker, Science, pp. 163-171—Wheaton, §§ 186-187—Hartmann, § 64—Heffter, § 73—Stoerk in Holtzendorff, II. pp. 483-490—Bonfils, Nos. 573-576—Despagnet, No. 401—Pradier-Fodéré, II. Nos. 871-874—Nys, II. pp. 132-139—Mérignhac, II. pp. 498-505—Calvo, I. §§ 347-352—Fiore, II. Nos. 718-726—Martens, I. § 97—Perels, § 4—Azuni, "Diritto maritimo" (1796), 1, c. I. Article III.—Cauchy, "Le droit maritime international considéré dans ses origines," 2 vols. (1862)—Nys, "Les origines du droit international" (1894), pp. 377-388—Castel, "Du principe de la liberté des mers" (1900), pp. 1-15—Fulton, "The Sovereignty of the Seas" (1911), pp. 1-56.
Former Claims to Control over the Sea.
§ 248. In antiquity and the first half of the Middle Ages navigation on the Open Sea was free to everybody. According to Ulpianus,[480] the sea is open to everybody by nature, and, according to Celsus,[481] the sea, like the air, is common to all mankind. Since no Law of Nations in the modern sense of the term existed during antiquity and the greater part of the Middle Ages, no importance is to be attached to the pronouncement of Antoninus Pius, Roman Emperor from 138 to 161:—"Being[482] the Emperor of the world, I am consequently the law of the sea." Nor is it of importance that the Emperors of the old German Empire, who were considered to be the successors of the Roman Emperors, styled themselves among other titles "King of the Ocean." Real claims to sovereignty over parts of the Open Sea begin, however, to be made in the second half of the Middle Ages. And there is no doubt whatever that at the time when the modern Law of Nations gradually rose it was the conviction of the States that they could extend their sovereignty over certain parts of the Open Sea. Thus, the Republic of Venice was recognised as the Sovereign over the Adriatic Sea, and the Republic of Genoa as the Sovereign of the Ligurian Sea. Portugal claimed sovereignty over the whole of the Indian Ocean and of the Atlantic south of Morocco, Spain over the Pacific and the Gulf of Mexico, both Portugal and Spain basing their claims on two Papal Bulls promulgated by Alexander VI. in 1493, which divided the new world between these Powers. Sweden and Denmark claimed sovereignty over the Baltic, Great Britain over the Narrow Seas, the North Sea, and the Atlantic from the North Cape to Cape Finisterre.
[480] L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.
[481] L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus ut aeris.
[482] L. 9 D. XIV. 2: ἐγὼ μὲν τοῦ κόσμου κύριος, ὁ δὲ νόμος τῆς θαλάσσης.
These claims have been more or less successfully asserted for several hundreds of years. They were favoured by a number of different circumstances, such as the maintenance of an effective protection against piracy for instance. And numerous examples can be adduced which show that such claims have more or less been recognised. Thus, Frederick III., Emperor of Germany, had in 1478 to ask the permission of Venice for a transportation of corn from Apulia through the Adriatic Sea.[483] Thus, Great Britain in the seventeenth century compelled foreigners to take out an English licence for fishing in the North Sea; and when in 1636 the Dutch attempted to fish without such licence, they were attacked and compelled to pay £30,000 as the price for the indulgence.[484] Again, when Philip II. of Spain was in 1554 on his way to England to marry Queen Mary, the British Admiral, who met him in the "British Seas," fired on his ship for flying the Spanish flag. And the King of Denmark, when returning from a visit to James I. in 1606, was forced by a British captain, who met him off the mouth of the Thames, to strike the Danish flag.
[483] See Walker, "History," I. p. 163.
[484] This and the two following examples are quoted by Hall, § 40.
Practical Expression of claims to Maritime Sovereignty.