The Sovereignty of the Sea / An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters

by Thomas Wemyss Fulton

[1067] Hall, A Treatise on International Law, Part II. c. ii. s. 2.

[1068] The High Court of Admiralty, for instance, decided in 1760 that a French vessel taken by an English privateer at Hayti was not good prize, as it had been attacked while in a port belonging to the King of Spain, “within reach of his cannon and under his protection” (Marsden, Report of Cases determined by the High Court of Admiralty, 175).

[1069] There were two cases of Twee Gebroeders—the first (Alberts, master) tried on 29th July 1800; the second (Northolt, master) tried on 27th November 1801.

[1070] Robinson, Reports of Cases Argued and Determined in the High Court of Admiralty, iii. 162. London, 1802.

[1071] Ibid., 339.

[1072] Ibid., v. 373.

[1073] Vide Chief Justice Cockburn, Law Reports, Excheq. Div., ii. 178. It is a curious circumstance that many English writers on municipal law, even after this time, adhering to a different line of inquiry, clung tenaciously to the husk of the old claims of England to the sovereignty of the sea. Hale, as we have seen, followed Selden, as did Hargrave and Blackstone, though with apparent diffidence. Chitty, in his Treatise on the Law of the Prerogative of the Crown, published in 1820, relying on Selden, Hale, and Molloy, declares that “the king possesses the sovereign dominion in all the narrow seas, that is, the seas which adjoin the coasts of England, and other seas within his dominions” ([p. 173]); and that he “has an undoubted sovereignty and jurisdiction, which he has immemorially exercised, through the medium of the admiralty courts, over the British seas, that is, the seas which encompass the four sides of the British islands; ... the law of nations and the constitution of the country have clothed the sovereign with this power, that he may defend his people and protect their commercial interests” ([p. 142]). He also assigns the soil under the sea to the king. Hall, in his Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, published in 1830, states the doctrine even more nakedly. After defining the British seas according to Selden, he says, “Over the British Seas, the King of England claims an absolute dominion and ownership, as Lord Paramount, against all the world. Whatever opinions foreign nations may entertain in regard to the validity of such claim, yet the subjects of the King of England do, by the common law of the realm, acknowledge and declare it to be his ancient and indisputable right.” Hall also assigns the bottom or fundum of the British seas to the king, the authorities cited being Coke, Callis, Molloy, Hale, and Blackstone. Loveland, the editor of the second edition of Hall’s Essay, which was published in 1875, does not attempt to qualify the statements. It was not, indeed, till after the decision in the case of the Franconia in 1876, and the Territorial Waters Jurisdiction Act of 1878, that the doctrine was abandoned in theory by English lawyers. Even Moore, the editor of the third edition of Hall’s Essay, which appeared in 1888, while pointing out the alteration of the law by the decision in the Franconia case, and by the Territorial Waters Jurisdiction Act, thought it undesirable to vary Hall’s text, having regard to the diversity of the opinions expressed by the judges in the case referred to. Vide p. 590.

[1074] Convention, 1818, Art. i. “... And the United States hereby renounce for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of his Britannick Majesty’s dominions in America not included within the above-mentioned limits.” Wheaton, Elements, 324, 463 (ed. 1864). Parl. Papers, North America, No. 1 (1878). Henderson, American Diplomatic Questions, 497.

[1075] Martens, Nouv. Recueil, V. ii. 358; Behring Sea Arbitration, British Case, Parl. Papers, United States, No. 1 (1893), p. 38, App. I. No. 1.

[1076] The Duke of Wellington to Count Nesselrode, 17th Oct. 1822; G. Canning to the Duke of Wellington, 27th Sept. 1822; Count Nesselrode to Count Lieven, 26th June 1823; G. Canning to S. Canning, 8th Dec. 1824; S. Canning to G. Canning, 3rd April 1825. Parl. Papers, ibid., 41, 42, 44, 46, 56, App. II. pt. i. 14, 15, 29, 52, 57.